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Such lies came to be known as “dropsy” testimony since the police testified that those charged with drug possession were now dropping illicit drugs on the ground rather than keeping them where they were. Prior to Mapp, evidence obtained from unlawful searches of the person was admissible, even when illegally obtained. New York State was governed by the famous 1926 dictum of Judge Cardozo, who, while he was on the bench of the New York Court of Appeals, had dismissed the federal rule with the observation that under it “the criminal is to go free because the constable had blundered.”(12) Obviously, the New York police had not been blundering prior to Mapp. Instead, they simply and routinely ignored the requirements of the Fourth Amendment. In a more popular account, Robert Daley’s fascinating Prince of the City, the former New York Deputy Police Commissioner writes of a surveillance showing that, on the one hand, defendants were guilty of hijacking television sets and, on the other, that cops were stealing some of the hijacked sets. The evidence was obtained through a legal wiretap. The detectives erased that part of the tape proving that the precinct cops had stolen some of the sets. Daley writes, “Tomorrow they would deny the erasure under oath.... It was the type of perjury that detectives... committed all the time in the interest of putting bad people in jail.”(13) The point here is not whether to deplore the police violations of the Fourth Amendment or the lying of police in the testimonial context; rather, it is to understand how police who engage in it themselves come to justify it, so that moral prescriptions might be given a better chance of being persuasive to police who do not find them compelling in practice. The policeman lies because lying becomes a routine way of managing legal impediments--whether to protect fellow officers or to compensate for what he views as limitations the courts have placed on his capacity to deal with criminals. He lies because he is skeptical of a system that suppresses truth in the interest of the criminal. Moreover, the law permits the policeman to lie at the investigative stage, when he is not entirely convinced that the suspect is a criminal, but forbids lying about procedures at the testimonial stage, when the policeman is certain of the guilt of the accused. Thus, the policeman characteristically measures the short-term disutility of the act of suppressing evidence, not the long-term utility of due process of law for protecting and enhancing the dignity of the citizen who is being investigated by the state. I quote at this point from a passage in Justice without Trial which recent discussions with police persuade me is still essentially valid: The policeman...operates as one whose aim is to legitimize the evidence pertaining to the case, rather than as a jurist whose goal is to analyze the sufficiency of the evidence based on case law.... The policeman respects the necessity for “complying” with the arrest laws. His “compliance,” however, may take the form of post hoc manipulation of the facts rather than before-the-fact behavior. Again, this generalization does not apply in all cases. Where the policeman feels capable of literal compliance (as in the conditions provided by the “big case”), he does comply. But when he sees the case law as a hindrance to his primary task of apprehending criminals, he usually attempts to construct the appearance of compliance, rather than allow the offender to escape apprehension. (14) As I stated earlier, I am not aware of an ethical theory that would condone perjured testimony. Bok’s standards for justifying deception would provide a useful guideline here, because the lying policeman would be required to justify courtroom perjury before a relevant public. This is precisely the sort of test I think Bok had in mind. Although police might justify perjury to each other over drinks after work, or in the corridors of the locker room, I can scarcely imagine any policeman willing to justify such conduct in a public setting--unless he was perhaps on a television talk show wearing a mask and wig. But any hesitation on the part of an officer to testify could be caused by fear of a perjury charge, not by moral scruples about lying in courtroom situations where criminals might go free. Investigative Deception Let us examine more closely the rationale for lying at the investigative stage. Here, police are permitted by the courts to engage in trickery and deception and are trained to do so by the police organization. One might properly conclude, from examining police practices that have been subjected to the highest appellate review, that the police are authoritatively encouraged to lie.(15) Detectives, for example, are trained to use informers or to act themselves as informers or agents provocateurs when the criminal activity under investigation involves possession or scale of contraband. The contraband itself does not much matter. From an enforcement perspective, the problems involved in apprehending those who sell counterfeit money are almost identical to those involved in trapping dealers of illegal drugs. Years ago, when I studied a vice squad intensively, the squad was asked to help the United States Secret Service in apprehending a counterfeiting ring. They were asked because vice squads are especially experienced in law enforcement practices involving use of informants, deception, security of information, and, most generally, the apprehension of offenders whose criminality is proven by the possession for sale of illegal materials. A similar point can be made with respect to burglary enforcement. Victims (or police) rarely observe burglars in action. In fact, burglars are usually apprehended when detectives are able to employ a decoy or an informer who tells them that so-and-so is in possession of stolen goods. The line between acceptable and unacceptable deception is such enforcement patterns is the line between so-called entrapment and acceptable police conduct. How does the law presently define entrapment? From my reading, the definition is hazy, murky, unclear. Two approaches are employed in legal writing about entrapment. One, the subjective approach, focuses upon the background, character, and intention of the defendant. Was he or she the sort of person who would have been predisposed to have committed the crime, even without the participation of the government official or agent? The objective test, by contrast, sets its sights on the nature of governmental participation. Justice Frankfurter, concurring in Sherman v. United States, presented the objective test as follows: “The crucial question, not easy to answer, to which the court must direct itself is whether the police conduct revealed in the particular case falls below standards, to which common feelings respond, for the proper use of governmental power.”(16) More recently, in United States v. Russell, Justice Rehnquist wrote the majority opinion affirming the prevailing rule--the subjective test--in a case where an undercover agent for the Federal Bureau of Narcotics and Dangerous Drugs told the suspect that he represented an organization that was interested in controlling the manufacture and distribution of methamphetamine.(17) The narcotics agent offered to supply Russell with a chemical that was an essential, hard-to-find ingredient in the manufacture of methamphetamine in return for half the drug produced. The agent told Russell that he had to be shown a sample of the drug in the laboratory where it was being produced before he would go through with the deal. Russell showed him the laboratory and told the agent he and others had been making the drug for quite some time. The agent left and returned to the laboratory with the necessary chemical and watched while the suspects produced the drug. The narcotics agent did not actively participate in the manufacturing of the drug, but he was courteous and helpful to those who did. When a suspect dropped some aluminum foil on the floor, it was testified, the narcotics agent picked it up and put it into the cooker. The majority of the court held that Russell was not “entrapped” because he had been an active participant in an illegal drug manufacturing enterprise that began before the government agent appeared on the scene and continued after the government agent left the scene. Russell was not an “unwary innocent,” but rather, an “unwary criminal.” The subjective test, in short, permits police to engage in deceptive practices provided that the deception catches a wolf rather than a lamb.(18) The objective test, focusing on the activities of the government, seems to suggest a more high-minded vision of the limits of police deception. By a high-minded vision, I mean to suggest one which conceives of significant limitations on police conduct in the interest of maintaining a civilized or moral constabulary. For example, police should not be permitted to torture a suspect in order to obtain a confession, even if it should turn out that the tortured party was an unwary criminal, that is, even if torture should produce the truth.(19) Nor, to cite a real case, would a civilized police be permitted to pump the stomach of a suspected narcotics dealer to show that pills that he had just swallowed contained morphine, even if that is exactly what the pills did contain.(20) But the objective test may lose its objectivity when it relies on such concepts as “common feelings” or the “conscience of the community.”(21) Although these concepts seem to imply enduring qualities or values, one could also argue that such concepts are variables. “Common feelings” might allow for far more latitude in police practices in a “high fear of crime” period than in a “low fear” period. Some might argue that values should be tested in the crucible of experience, and that flexibility is itself a virtue. The trouble is that one person’s flexibility may be interpreted as another’s lack of principle. Moreover, “common feelings” may not be informative when we consider particular examples. I am reminded of a passage in Arthur Schlesinger’s biography of Robert Kennedy, where Schlesinger tries to resolve the issue of whether Kennedy really knew about FBI wiretapping when he was Attorney General. Schlesinger relates a conversation between J. Edgar Hoover and Kennedy, where Hoover tells Kennedy that he had the situation “covered.”(22) According to Schlesinger, Hoover felt that he had thus informed Kennedy of the wiretap, while Kennedy took the term “cover” to mean that a secret government informant had worked his way into the suspect’s entourage. Assuming for the purposes of argument that Kennedy did not know about the wiretapping, by what principle is a wiretap or bug to be considered less morally acceptable than a secret informant?(23) A wiretap or bug clearly invades expectations of privacy. But wiretaps and bugs enjoy two advantages over secret informants. First, the evidence they report as to what the defendant did or did not say is trustworthy. Second, and perhaps more important, a bug cannot encourage lawbreaking: It can neither advocate nor condone such conduct. It is not clear to me how an objective standard would distinguish between the two, and I find myself genuinely puzzled as to why informants are usually thought to be morally acceptable, while bugs are not. Indeed, an argument could be made that when the government attempts to modify dispositions (by employing secret informants who worm their way into the confidence of suspects, for example), that this is more violative of human dignity than the involuntary extraction of evidence from the body, even through stomach pumping. At least one whose stomach is being pumped can identify his adversary, while the secret informant “messes with the mind,” as it were. In any event, for the purpose of my more general argument, it is enough to acknowledge that both legal tests of entrapment--objective and subjective--permit police to employ an enormous amount of routine deception, although the prevailing subjective test permits even more. Even in the dissenting opinion in Russell, Justice Stewart, supporting the objective test, writes that “the government’s use of undercover activity, strategy, or deception is [not] necessarily unlawful. Indeed, many crimes, especially so-called victimless crimes, could not otherwise be detected.”(24) In short, police are routinely permitted and advised to employ deceptive techniques and strategies in the investigative process. The police may occasionally trap a lamb but the courts tacitly acknowledge that in the real world police deal mostly with wolves--and in the eyes of the courts a wolf might be wearing the clothing of either a Congressman or a cocaine dealer. Judicial permissiveness regarding investigative deception suggests how difficult it would be to defend a Kantian imperative against lying even in the abstract and how impossible it would be for any such defense to be accepted by courts, police, and the public. I shall conclude this discussion of investigative deception by suggesting a hypothesis: Judicial acceptance of deception in the investigation process enhances moral acceptance of deception by detectives in the interrogatory and testimonial stages of criminal investigation, and thus increases the probability of its occurrence. This hypothesis does not suggest that every detective who deceives also perjures himself. It does suggest that deception in one context increases the probability of deception in the other. This hypothesis cannot be tested, and therefore may not hold. It cannot be tested because a true test would require an experimental design where we could manipulate the independent variable (authoritative permission to employ investigative trickery) and measure the dependent variable (courtroom perjury by police). Since we can neither manipulate the former nor measure the latter, the hypothesis, however plausible, must remain speculative. Interrogatory Deception In the remainder of this paper, I shall assume that the previously mentioned hypothesis is plausible and organize discussion around it. Thus, let us turn our attention to deception and interrogation--and here I shall confine my remarks to in-custody interrogation, although I recognize that the line between custody and precustody is unclear, and that the one between conversation and interrogation is also unclear. For the present, I simply want to make a historical reference to the in-custody interrogation problem which Miranda v. Arizona, decided in 1966, sought to resolve.(25) The holding of Miranda has now become so familiar as to be part of American folklore. The case held that the arrested person must be informed of his or her right to remain silent, must be warned that any statement he or she does make may be used as evidence, and must be told that he or she has the right to the presence of an attorney. The accused should also be informed that an attorney will be provided if he or she cannot afford one. The court also held that the government has a “heavy burden” to prove that a waiver of such rights was made voluntarily, knowingly, and intelligently.(26) The Miranda decision was the evolutionary outcome of the Supreme Court’s response to the admission, in state and federal courts, of confessions which, in the early part of the century, were based on overt torture, later, on covert torture (the third degree), and later still, on deception and psychological intimidation. Overt torture is exemplified by the facts in Brown v. Mississippi, where black defendants were beaten and whipped until they confessed. By 1936, the Supreme Court could no longer overlook the glaring fact that a confession so elicited was deemed admissible by the Supreme Court of the State of Mississippi. But punitive in-custody interrogation was, of course, not confined to the South. The 1931 Wickersham Commission reported numerous instances of covert torture in many cities between 1920 and 1930.(27) The chief distinction between covert and overt torture is not in the severity of pain induced, but in its deniability. The Mississippi sheriffs did not deny whipping their black suspects. They were brutal, but truthful. By contrast, the third degree classically involved deniable coercion: starving suspects, keeping them awake day and night, confining them in pitch black airless rooms, or administering beatings with instruments which left few, if any, marks. For example, a suspect might be hit over the head with a blackjack (though a telephone book would be placed between the blackjack and the head), or he might be hit with a rubber hose.(28) Other types of in-custody interrogation might evoke forms of torture even more terrifying, but also more deniable. Detectives in one police department reportedly hanged suspects from their heels outside windows in tall buildings to induce confessions. Others simply required that defendants stand erect and be forbidden use of bathroom facilities. The dramatic impact of the sadism of the third degree (29) has tended to obscure the fact that, in using it, the police necessarily condoned systematic deception of the courts as well as torture of suspects. Thus, not only did the police subculture’s norms of the period permit station house physical punishment of those whom the police might have felt deserved it, these norms also condoned wholesale perjury--disregard of the moral authority of the courts and of the oaths taken in them.(30) Miranda overruled Crooker v. California,(31) and Cicenia v. LaGay,(32) both of which were cases where the accused asked to see a lawyer after he agreed to be interrogated. In Cicenia’s case, not only did he ask to see a lawyer, but his lawyer, who had arrived at the police station, had asked to see his client. Miranda might well be interpreted as a case where the Supreme Court was concerned not only with whether a confession was coerced--that had long been a concern of the courts--but whether the right of the accused not to be coerced was being effectuated properly in the context of the adversary system. The dissenters in Crooker--Douglas, Warren, Black, and Brennan--took a strong position on the right to counsel at the pretrial stage, arguing: The right to have counsel at the pre-trial stage is often necessary to give meaning and protection to the right to be heard at the trial itself. It may also be necessary as a restraint on the coercive power of the police(33).... No matter how well educated, and how well trained in the law an accused may be, he is surely in need of legal advice once he is arrested for an offense that may exact his life(34).... The demands of our civilization expressed in the due process clause require that the accused who wants a counsel should have one at any time after the moment of arrest.(35) The dissent also wrote that “the third degree flourishes only in secrecy.”(36) It is quite clear, I think, that Justices Warren, Douglas, Black, and Brennan (and later Fortas, with whom they were to form a majority in Miranda) simply did not trust police to behave noncoercively when they had a suspect in custody; only counsel, they believed, would constrain police. Ironically, compelling evidence for the view that police custody is inherently coercive was elicited from a 1962 book by professional police interrogators Fred E. Inbau and John E. Reid, entitled Criminal Interrogation and Confessions.(37) This book was a revision and enlargement of the second half of Inbau and Reid’s earlier book, Lie Detection and Criminal Investigation.(38) The book is replete with suggestions for coercive and deceptive methods of interrogation, which the authors clearly considered necessary and proper for police conducting an investigation. Inbau and Reid were not advocates of the third degree. On the contrary, their book, seen in historical context, was a reformist document, representing a kind of dialectical synthesis between the polarities of third degree violence and civil liberties for protection of human dignity: Such a synthesis would have been progressive in the 1930s. The benchmark test employed by Inbau and Reid was: “Although both ‘fair’ and ‘unfair’ interrogation practices are permissible, nothing shall be done or said to the subject that will be apt to make an innocent person confess.”(39) A more philosophically-based and sophisticated version of the Inbau and Reid position (and a more modern one) is Joseph Grano’s “mental freedom” test of voluntariness. It is an objective test, asking “whether a person of ordinary firmness, innocent or guilty, having the defendant’s age, physical condition, and relevant mental abnormalities (but not otherwise having the defendant’s personality traits, temperament, intelligence, or social background), and strongly preferring not to confess, would find the interrogation pressures overbearing.”(40) What might these pressures be? It is worthwhile, I think, to quote substantially from the Miranda decision itself, partly to understand the impact Inbau and Reid’s books had on the courts, and partly to understand what sorts of police trickery might or might not be regarded as coercive. Justice Warren wrote: The officers are told by the manuals that the “principal psychological factor contributing to a successful interrogation is privacy--being alone with the person under interrogation.” The efficacy of this tactic has been explained as follows: If at all practible, the interrogation should take place in the investigator’s office or at least in a room of his own choice. The subject should be deprived of every psychological advantage. In his own home he may be confident, indignant, or recalcitrant. He is more keenly aware of his rights and more reluctant to tell of his indiscretions or criminal behavior within the walls of his home. Moreover his family and other friends are nearby, their presence lending moral support. In his office, the investigator possesses all the advantages. The atmosphere suggests the invincibility of the forces of the law. To highlight the isolation and unfamiliar surroundings, the manuals instruct the police to display an air of confidence in the suspect’s guilt and from outward appearance to maintain only an interest in confirming certain details. The guilt of the subject is to be posited as a fact. The interrogator should direct his comments toward the reasons why the subject committed the act, rather than court failure by asking the subject whether he did it. Like other men, perhaps the subject has had a bad family life, had an unhappy childhood, had too much to drink, had an unrequited desire for women. The officers are instructed to minimize the moral seriousness of the offense, to cast blame on the victim or on society. These tactics are designed to put the subject in a psychological state where his story is but an elaboration of what the police purport to know already--that he is guilty. Explanations to the contrary are dismissed and discouraged. The texts thus stress that the major qualities an interrogator should possess are patience and perseverance.(41) The manuals also suggest that suspects be offered legal excuses for their actions, says the Miranda Court. The interrogator is instructed to tell the suspect something like: Joe, you probably didn’t go out looking for this fellow with the purpose of shooting him. My guess is, however, that you carried a gun--for your own protection. You knew him for what he was, no good. Then when you met him he probably started using foul, abusive language and he gave some indication that he was about to pull a gun on you, and that’s when you had to act to save your own life. That’s about it, isn’t it, Joe?(42) If the suspect does not respond to the understanding interrogator, notes the Court, another investigator is brought in--Mutt, the tough guy who plays against Jeff’s nice guy role. In this technique, two agents are employed. Mutt, the relentless investigator, who knows the subject is guilty and is not going to waste any time. He’s sent a dozen men away for this crime and he’s going to send the subject away for the full term. Jeff, on the other hand, is obviously a kindhearted man. He has a family himself. He has a brother who was involved in a little scrape like this. He disapproves of Mutt and his tactics and will arrange to get him off the case if the subject will cooperate. He can’t hold Mutt off for very long. The subject would be wise to make a quick decision. The technique is applied by having both investigators present while Mutt acts out his role. Jeff may stand by quietly and demur at some of Mutt’s tactics. When Jeff makes his plea for cooperation Mutt is not present.(43) Although Miranda is generally interpreted as focusing on the inherently coercive aspects of custodial interrogation, it should be noted that interrogatory tactics employ both deception and coercion. It is questionable whether custodial interrogation would be effective without deception. Indeed, deception appears to serve as custodial interrogation’s functional alternative to physical coercion. Hence, deception and the inherent coercion of custody are inescapably related in modern interrogation. Miranda generated enormous controversy. Studies were conducted by scholars and law reviews to try to demonstrate the impact of Miranda.(44) (It would be interesting to conduct a new round of studies to see if the findings of the older ones still hold.) Basically, the studies came to much the same conclusion: The Miranda warning did not appreciably reduce the amount of talking that a suspect would do, nor did Miranda significantly help suspects in making free and informed choices about whether to talk. A nice statement of how Miranda warnings could be rendered ineffectual, written by an author of the Yale Law Journal’s study of Miranda’s impact, appeared in the Yale Alumni Magazine in 1968. Even when detectives informed suspects of their rights without undercutting devices, the advice was often defused by implying that the suspect had better not exercise his rights, or by delivering the statement in a formalized, bureaucratic tone to indicate that the remarks were simply a routine, meaningless legalism. Instinctively, perhaps, detectives tended to create a sense of unreality about the Miranda warnings by bringing the flow of conversation to a halt with the statement, “...and now I am going to inform you of your rights.” Afterwards, they would solemnly intone: “Now you have been warned of your rights,” then immediately shift into a conversational tone to ask, “Now would you like to tell me what happened?” By and large the detectives regarded advising the suspect of his rights as an artificial imposition on the natural flow of the interrogation.(45) Miranda also generated a substantial law review literature--some might say an industry--because the United States Supreme Court has been unwilling to set the only standard that would eliminate practically all the Miranda problems. That standard would be: Once the Miranda warnings are given, the accused is also given a lawyer who explains the implications of the warning.(46) The privilege against self-incrimination existed before Miranda. The Miranda ruling essentially argues that, as part of due process, the government should not be permitted to make its case on the basis of the defendant’s ignorance. Defendants must be informed of their rights. If we accept Miranda and take it seriously, we also must acknowledge that suspects do not--across the board--possess the legal acumen to waive their Miranda rights. In the late 1960’s, at least, persons of “ordinary firmness” interpreted--or miss interpreted--their Miranda rights in such a way so as not to exercise them. From the perspective of those who would like to see Miranda overturned, that might not be a problem. But it also suggests that the average suspect, however “ordinary firm,” is not legally competent. Those who are legally competent (lawyers) will routinely advise suspects to maintain silence. The continuing debate over Miranda reflects an ambivalence over enforcing the rule that the values expressed by the Miranda majority seem to call for: There can be no confession without a genuinely voluntary and knowledgeable waiver, exercised after consultation with a lawyer. The Crooker minority was unquestionably correct in its assessment that people cannot fully understand the implications of legal warnings--offered, after all, in the rather coercive situation of arrest--without legal consultation. We apparently still prefer to offer the government an edge based on the defendant’s ignorance. Knowledgeable defendants will remain silent. The ignorant will talk. Grano’s “ordinary firmness” test necessarily implies overruling Miranda. His test, which is oriented to crime control, would surely result in far more admissible evidence than a genuinely voluntary, lawyer-advised, waiver would. The present Miranda rule lies somewhere in between. Perhaps we tolerate Miranda because on the whole we have learned that it does not matter very much. Pressures of in custody interrogation are such that, apparently, most suspects will talk despite the Miranda warning. In any event, most confessions are elicited in cases where there is a victim, where the suspect is willing to plead guilty to a lesser offense. Besides, once the suspect begins to talk, the very techniques the court sought to avoid are probably permissible. When a policeman says, in the kindliest of tones, “Look Joe, it will be better for you to confess,” he is of course essentially deceiving the suspect into believing that he is the suspect’s friend rather than his adversary. In a recent article, Welch S. White has argued that certain interrogation tactics are, nevertheless, likely to risk depriving the suspect of his constitutional rights.(47) Accordingly, White believes that the court should prohibit, via per se exclusions, “police conduct that is likely to render a resulting confession involuntary or to undermine the effect of required Miranda warnings or a suspect’s independent right to an attorney.”(48) What would some of these prohibitions be? One would be against deceiving a suspect about whether an interrogation was taking place, as in Massiah v. United States.(49) There, after indictment, one confederate, Colson, agree to cooperate with the government, and deceptively interrogated his accomplice, Massiah. The resulting incriminatory statements were held inadmissible as a violation of the Sixth Amendment right should be triggered at the point of arrest. He also argues that statements elicited from “jail plants” should be prohibited, on grounds that someone who is experiencing the pressures of confinement is more likely to confide in a police agent.(50) Slightly different forms of trickery, which White also advocates prohibiting, are police misrepresentations of the seriousness of the offense or police use of threats or promises for confessing. Finally, White argues for prohibition of “father figure” trickery, where a police officer falsely acts like a friend or counselor rather than an adversary. White offers as one example the famous Connecticut murder case, State v. Reilly, where the principal interrogating officer manipulated an eighteen-year-old into falsely confessing that he murdered his mother.(51) White treats the case primarily as an example of the officer pretending to be a father figure. White’s discussion, however, omits entirely what two books about the case point to as the real culprit- the use of he polygraph during the interrogation of Reilly, who confessed after being told by the “father figure” that a machine, which could read his mind, had indicated that he actually was the murderer.(52) The Polygraph as a Deceptive Device Recall that Inbau and Reid were not only advocates of deceptive interrogation. They were also proponents and developers of polygraph examination techniques. The polygraph is an instrument which measures changes in blood pressure, pulse, respiration, and perspiration. Detection of lies via the examination of physical change is actually a throwback to early forms of trial by ordeal. There are reports of a deception test used by Hindus based on the observation that fear may inhibit the secretion of saliva.(53) To test credibility, an accused was given rice to chew. If he could spit it out, he was considered innocent: but if it stuck to his gums, he was judged guilty. Until 1895, however, nobody had ever used a measuring device to detect deception. In that year, the Italian criminologist Cesare Lombroso used a combination of blood pressure and pulse readings to investigate crime. Before the First World War, others experimented with blood pressure and respiratory recordings. John A. Larson, perhaps the most scholarly of the Chicago- Berkeley group which sought to advance the “science” of lie detection, built an instrument in 1921 which he called a “polygraph”: it combined all three measures-blood pressures and respiration. His junior collaborator, Leonard Keeler, added galvanic skin response to the list. Contemporary lie detector machines basically employ all these measures, although there are some other technical improvements as well. For example, integrated circuits and other components reduce the margin of error in measurement. According to a survey conducted by the New York Times in 1980, the lie detector is widely used by law enforcement groups: The Federal Bureau of Investigation conducted 1900 polygraph examinations in 1979, an increase of about 800 from 1978. The number of polygraph examinations administered by the Army, Navy, Marines and Air Force increased by 18 percent in two years, from 5710 to 6751. Polygraphs are finding a steadily growing market among state and local law enforcement agencies, litigants in civil cases and private retailers, who use the device to screen job applicants and combat pilferage.(54) It is understandable, but distressing, that the use of the polygraph should be increasing. It is distressing because the validity of polygraph results is flawed by fundamental theoretical problems, not by technical ones. The increase in use is understandable because even though the polygraph is not a dispositive truth-finding device, it is nevertheless an effective instrument of social control. In the past, one problem of polygraph examination was imprecision of measurement. Thus, the machine recorded blood pressure, but there was a question as to whether it recorded blood pressure accurately. There is no doubt that imprecision of measurement was a problem in the past, but the problems with the lie detection process itself were far more fundamental and serious. These problems stem from the inadequacy of the theory behind lie detection. That theory involves the following premises: The act of lying leads to conscious conflict; conflict induces fear or anxiety; and these emotions are accompanied by measurable and interpretable physiological changes.(55) But the assumptions of the theory are questionable. The act of lying does not always lead to conscious conflict. Some witnesses believe their own stories, even when they are false. Even when witnesses know they are lying, they may not experience much fear. Or, innocent witnesses may experiment fear and anxiety just being asked threatening questions. All this depends on witnesses’ individual personalities, social backgrounds, what they are testifying to, and to whom they are testifying. Polygraph examiners acknowledge that subjects must “believe in” the lie detector. Even if witnesses do experience fear and anxiety, these emotions may not consistently be expressed as changes in bodily response. If all bodily responses rose and fell exactly with emotional states, the responses would have a precise relationship to each other. But that is not the case. Bodily responses do not vary regularly, either with each other or with emotional states. If they did, only a unigraph, not a polygraph, would be required. Four imprecise measures are not more accurate than one precise measure. Since the relations among lying, conflict, emotion, and bodily responses are so fuzzy, the accuracy of the lie detector is not comparable to that of, say, blood tests or X-rays. It is unlikely that a dozen lie detector examiners would consistently reach the same conclusions regarding truth or falsity if they depended only on the squiggles produced by a polygraph. So why is the use of lie detectors sharply increasing? The fact that the polygraph is not reliable does not mean it is ineffective as a social control instrument. Crime suspects may confess when questioned by a skilled interrogator. When a suspect is strapped into what he or she would view as a technologically foolproof “lie detector,” the coercive power of the interrogator is heightened. The interrogator is not an adversary, but an objective scientific observer. Even those suspicious of father figures may embrace the trappings of science. Job applicants, in particular, are effectively “screened” with a lie detector. Consider the following lines of questioning. First, softballs: Is your name John Jones? Are you thirty-six years-old? Were you born in New York City? Then, hardballs: Have you ever done anything you are ashamed of? Have you ever stolen anything? Have you ever known anyone who has stolen something? Who? Have you ever engaged in homosexual acts? And so forth. This sort of questioning may well produce results. There are thus two quite different empirical issues regarding the polygraph. Is it highly accurate, like X-rays and blood tests? The answer is no. Is it effective in eliciting information from subjects who believe in it? The answer is yes? Whether the lie detector ought to be used by police-or by employers-is ultimately an ethical question. Should we allow deceptive, intrusive, yet nonviolent methods of interrogation in various institutions of a free society? Different people will have different answers to that question. But at least we should ask the right questions when considering the role of the so-called lie detector in American society. The ethical problem is even more complicated because some who employ the lie detector actually believe that it detects lies, while others use it primarily as a technique of psychological intimidation. The police sergeant who told Peter Reilly that “this machine will read your mind” and then falsely persuaded Reilly that he had killed his own mother, thus eliciting from Reilly a critical but untrue confession, may himself have believed that the polygraph detects lies. Did the sergeant also believe that the lie detector reads the mind? The lie detector is symbolically scientific, and its technologically sophisticated trappings commend it to the most thoughtful and professional segments of the policing community. Thus, police use the polygraph because they believe in it. Yet the technique’s results can convict innocent people, where old fashioned techniques of deception would not. An instance of this, the case of F.B. Fay, is reported by psychophysiologist David T. Lykken.(56) Fay was asked by a police polygraphist in Toledo in 1978, “Did you kill Fred?” and “Before age twenty-four did you ever think about doing anyone bodily harm to get revenge?” It was assumed that, if Fay were innocent of Fred’s murder, the second or “control” question would frightened Fay more, and that this would, in turn, “dampen” his autonomic reaction to the first or “relevant” question. Unfortunately for Fay, he responded more strongly to the “relevant” questions. The examiner, therefore, testified that Fay’s denials were deceptive, and he was found guilty of murder and was sentenced to prison for life. In October 1980, the actual killers were identified and Fay was released after serving two and a half years in prison. In sum, then, we have to educate the law enforcement community as to the realistic limits of polygraph. This will be difficult, partly because there is, as I have noted here, considerable controversy over use of the polygraph, and partly because, for the reasons I have already suggested, it is a uniquely valuable tool of interrogation. I myself have no hesitancy in stating where I stand on the use of the instrument. I would argue against its use-first, because of the false claims for its accuracy permit the highest degree of nonviolent coercion, and second, because cool nonreactors (sociopaths, skilled con men, the mildly self-drugged) can beat the test. Finally, if one of the important reasons for the Miranda rule is the inherent coerciveness of police interrogation, then how much more coercive is an interrogation by a questioner who is armed with a deceptively scientific instrument that can “read the mind”? Conclusion I have tried in this article to offer several observations about deception in the detecting process. First, I have suggested that detecting is a process moving from investigation, often through interrogation, to testimony. Police are offered considerable latitude by the courts during the investigative stage. This latitude to deceive, I have argued, carries over into the interrogation and testimonial stages as a subculturally supported norm. I have suggested that there is an underlying reason for this. When detectives deceive suspects in the course of criminal investigations or interrogations, they typically are not seeking to promote their own self interest (as a detective would if he had lied about accepting bribes). On the contrary, the sort of deception employed to trap a narcotics dealer or dealer in stolen goods, or to elicit a confession from a murderer or rapist, is used for the public interest. The detectiveand here I am speaking of a professional detective who explicitly condemns the use of physical violence but accepts employing psychological intimidation during interrogationis also interested in eliciting truth. This results, I have suggested, in a paradox. The end of truth justifies for the modern detective the means of lying. Deception usually occurs in the interest of obtaining truth. Both the detective and the civil libertarian, I have suggested, employ a utilitarian calculus. In so doing, each reveals the obvious limitations of such a calculus for resolving major issues of public policy. The detective measures the costs of the act of lying against the benefits to the crime victim and the general public. The civil libertarian is also concerned with the public interest but measures it in terms of rules protecting the long-range interest of all citizens in a system of governance, as opposed to the shorter range interests of punishing perpetrators. The law reflects the tension between due process and crime control imperatives by establishing differentand inconsistentstandards for investigation and interrogation. At the investigative stage, the law’s subjective test of entrapment comes perilously close to tests like Inbau and Reid’s “innocent person” or Grano’s more sophisticated “mental freedom” test: Both permit deceptive and coercive interrogation against wolves but not lambs. Is there a moral justification for distinguishing between governmental deception at the investigative stage and at the interrogation stage? One could approach this issue by asking: What would be the rule of law regarding police deception in a moral society? It seems clear that in a moral society, authorities such as police would not be permitted to employ tactics that are generally regarded as immoral against those suspected, or accused, of a crime. Indeed, we already have such rules: Police are not permitted to coerce a suspect physically. The police may, however, subject suspects to psychological coercion provided they consent to be interrogated. Unreliability is one reason we prohibit the admission of evidence obtained from physically coerced confessions. But we could have a rule distinguishing between a pure mea culpa confession and one which produces material evidence, such as a gun or a body. We do not have such rules partly because we deplore physically coercive tactics even when used against the guilty; we also do not have them because we fear that physical coercion would become a routine aspect of police interrogation. Physical coercion is clearly indistinguishable from deceit and trickery, and few of us would, really, I suspect, choose to be smashed in the face with a rifle butt, or hung from a high window, rather than be betrayed by a friend who is actually and secretly a police informant gathering incriminating evidence. The more difficult question is whether deceptionwhich we accept at the investigative stageis as morally offensive as psychological coercion. Recall that earlier I discussed the distinction between gathering in formation by a secret informant and gathering it by electronic eavesdropping. I suggested there that I could not see any principle by which one was, on balance, worse than other, even though we can perceive different sorts of objections to each. The wiretap or bug clearly invades privacyin some ways more, in some ways less, than electronic eavesdroppingand personality. Not only is the secret informant privy to actions and conversations one would never consent to have overheard; the secret informant also modifies personality by deliberately attempting to impair judgment. The wiretap is, in social science jargon, an “unobtrusive measurer.” By contrast, the informant necessarily produces a reaction speech, behavioron the part of the observed, and may prove influential in determining that reaction. If there is a distinction between investigative and interrogatory trickery and deceit, it has to be based on situational ethics, the morality of practical necessity. Practically speaking, it is impossible to enforce consensual crime statutesbribery, drug dealing, prostitutionwithout employing deception. This need for deception may not be as clear at the interrogation stage. Often, evidence can be produced independently of confessions, and occasionally, false confessions are elicited. But confessions may also be practical necessity in many cases, particularly when dealing with the most serious sorts of criminals, such as murderers, rapists, and kidnappers. Miranda himself, it may be recalled, had confessed to the forcible kidnapping and rape of a nineteen-year-old woman. Why should situational ethics permit lying to a drug dealer, but forbid custody incustody conversational questioning of a forcible rapist? That question can be answered on historical and constitutional grounds, but it is hard to see how to make consistent common sense out of it. I cannot here reconcile such inconsistencies, nor am I writing to lobby the Supreme Court. But I would like to conclude by suggesting that apparent inconsistency makes law look more like a game than a rational system for enforcing justice. Because of this appearance of inconsistency, police are not likely to take the stated rules of the game seriously and are encouraged to operate by their own codes, including those which affirm the necessity for lying wherever it seems justified by the ends. This article was published in Criminal Justice Ethics, Volume 1, Number 2 (Summer/Fall 1982). Copyright© 1982. (Requests for permission to reprint multiple copies may be directed to cjejj@cunyvm.cuny.edu). |
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