Deception in the Investigative, Interrogative, and Testimonial Processes - Essay Example

Deception is routine in the investigative, interrogative, and testimonial processes of law in the United s. Criminals are deceptive, but detectives, lawyers, and individuals on the side of justice can also be deceptive. Investigative processes are often deceptive when collecting evidence against a potential criminal. Detectives rummage through suspects’ garbage, send letters to be returned in hope of collecting DNA, and lie to suspects. The legal system has upheld a detective’s right to use deception in interrogations. The theory being an innocent person would not confess if a detective used deception. The testimonial process is also deceptive. Witnesses do not get to testify freely. A witness can only answer a lawyer’s question. Deception is used to reach a truth about a crime or criminal activities. Ethically deception might be wrong, but deception is legal in the United States on both sides of the law. Deception is often thought of as lying. There is much more to deception than lying. One form of deception is trickery. Deceiving the other party in a criminal investigation, interrogation, or trial process can consist of everything from turning one suspect against another to wiretaps. Deception is means to the end in investigative, interrogative, and trial processes. It is used as a tool by both sides. Criminals use deception to get away with crimes, while law enforcement uses deception to convict criminals. Both sides use deception to obtain their goal. During the investigative process, deception from a suspect is expected. False alibis, stonewalling, and trying to divert evidence are all examples of deception. Suspects with something to hide, that are guilty, or are protecting someone can be deceptive with detectives or other officers of the court. This behavior is expected in criminals and those that associate with criminals (Pollock 2007:12). Deceptive behavior can be part of a criminal’s makeup. Since individuals that commit crimes are not concerned with ethical behavior, the ethics of deception would not be a top priority. The investigative process can also have deception on the police side as well. Turning criminals against each other and wiretapping can be used by law enforcement as an investigative tool (Bennett and Hess 2006:192). Law enforcement can send a class action lawsuit through the mail to a suspect in a case where DNA was collected. The hope would be the suspect would fill out the paperwork and lick the envelope in order to obtain DNA. Another method is described by Harmon (2008:A1): On that spring day in 2006, the detectives watched as Mr. Gallego lit a cigarette, smoked it and threw away the butt. That was all they needed. The practice, known among law enforcement officials as ‘surreptitious sampling,’ is growing in popularity even as defense lawyers and civil liberties advocates argue that it violates a constitutional right to privacy. This type of deception is not lying. Deception in these cases are simply using round about methods to obtain evidence in a cases. The deception used in an investigation helps law enforcement gain evidence to solve a crime. The interrogation process has opposing goals from the different parties. A suspect’s goal is to give as little information as possible to law enforcement or convince the interrogators of their innocence. Every suspect that is interrogated must be read their Miranda rights, or their confession is inadmissible (Bennett and Hess 2006:15). Although retaining counsel is an option, many suspects talk to law enforcement. Suspects believe that using deception in their interrogation will convince the cops of their innocence. Although many suspects think they can talk their way out of a situation, Shuy (1998:76) suggests law enforcement can detect deception using the following methods: Providing overly detailed statements. Repeating spontaneously. Complicating the story unexpectedly. Giving unusual details… Hedging… Pausing unexpectedly. Using pronoun deviations such as you and I. When a detective observes these signs, the suspect is probably being deceptive. Suspects use deception in order to be freed and not charged with a crime. Law enforcement can use deception in the interrogation. The theory is an innocent person will not confess even when confronted with false information. An example would be if an investigator told an innocent individual that blood was found on their clothes, car, and in their apartment, despite finding nothing, the innocent individual would still deny murdering anyone. A guilty party might confess with made up evidence, because there is a possibility that evidence exists. A guilty suspect might confess because of the uncertainty of evidence left. Pollock (2007:285) suggests that manipulating a suspect mentally instead of physically is easier to understand. Other forms of deception are allowed during an interrogation before a suspect requests a lawyer. Pollock (2007:283) states several methods of deception used by law enforcement like “The father confessor approach [a sympathetic paternal figure for the defendant to confide in]. Mutt and Jeff partners [a ‘nice guy’ and a seemingly brutal, threatening officer].” These methods are used to get a confession. Other deceptions are used to keep a suspect talking. For example Pollock (2007:283) lists: Calling the questioning an interview rather than an interrogation. Presenting Miranda warnings in a way designed to negate the warning, by mumbling or by using a tone suggesting that the offender had better not exercise the rights delineated or they are unnecessary. Misrepresenting the seriousness of the crime. Misrepresenting the moral seriousness of the crime. Offering a deal for a confession. Using fabricated evidence. All of these techniques are used to keep a suspect talking. A talking suspect is more likely to break or slip up. A confession is the end of a case. The detective has outsmarted the suspect. Testimonial processes are often seen as getting to the truth about a crime. Nothing could be father from the truth. The prosecution wants to prove the defendant is guilty. The defendant wants to prove their innocence. It does not matter how these means are achieved as long as the current law is followed. Heaton, Shepherd, and Wolchover (2005:63) argue that testimony is only as truthful and forthcoming as a witness wants to be. An example might be a drug dealer’s girlfriend might know the extent of his dealings, but only testifies about what a great father he is to their son. When a witness has an agenda, normally all that comes across from that witness is their agenda. So depending upon whether the witness is for the prosecution or defense, the witness testifies for who calls them. Prosecutors and defense lawyers often question a witness to make points for their case. A prosecutor will not ask a rape victim if she was wearing seductive clothing, just like a defense attorney will not ask if the defendant has a past sexual predator behavior. A comparison of how a prosecutor and defense lawyer would question their individual witnessed during a rape case is in the chart below. Crime: Rape Prosecution Witness Defense Witness Question Did the defendant put his penis in your vagina? Is the defendant a good father and son? Each question has a purpose. The prosecution has to prove the defendant is a rapist, while the defense has to prove it was consensual in a rape case. Perjury is another form of deception that comes from both sides of the courtroom. Prosecution witnesses may lie to help convict a defendant. Defense witnesses may lie to help get the defendant off. Perjury, unlike misleading questions by opposing counsels, can and are prosecuted by the law. If a person lies on the stand, and a prosecutor can prove it, that person can spend time in jail. Deception is ethically wrong in investigative, interrogative, and testimonial processes of the law. However, it is a necessary evil. The goal in criminal processes is to find the truth. The truth can be elusive. One man’s truth is another man’s deception. In order to achieve the truth, sometimes deception is necessary. Good can come from unethical acts. One example outside the law is a war fighting for freedom. Wars are not fought ethically. The basis for the American Court System came from this type of unethical war. In order to achieve the truth about a crime deception is sometimes the only mean to the truth. Deception is part of life. Thus it is not surprising to find deception in investigative, interrogative, and testimonial processes. Sometimes the deception is legal, sometimes it is not. Law enforcement, court officers, and criminals all use deception. If deception is within the limits of the law, it is consider good. When deception is used to commit or cover up a crime, it is wrong. Ethically this does not make sense, but legally it does. Bibliography Bennett, W. and K.M. Hess. (2006). Criminal investigation. New York: Wadsworth Publishing. Harmon, A. (2008). Defense lawyers fight DNA samples gained on the sly. 2 April 2008. The New York Times. P. A1. Heaton-Armstrong, A., E. Shepherd, and D. Wolchover. Eds. (2002). Analysing Witness Testimony: Psychological, Investigative and Evidential Perspectives: A Guide for Legal Practitioners and Other Professionals. New York: Blackstone. Pollock, J.M. (2007). Ethical dilemmas and decisions in criminal justice, Fifth Edition. New York: Wadsworth Publishing. Shuy, R.W. (1998). The language of confession, interrogation and deception. New York: Sage Publications.   Read More