Big criminal justice reform news out of the state of Illinois–big in the sense that this is a tremendous development. But also big given that it might also be surprising to non-legal observers, since many may have assumed it already was illegal for police to lie to either children or adults (in 49 states and supported by decades of state and federal jurisprudence, this remains very, very, legal):
Illinois has become the first state to ban police from lying to minors. Governor J.B. Pritzker signed a bill Thursday "which prohibits the use of deceptive tactics by all law enforcement when interrogating a minor."
The bill, sponsored by state Senator Robert Peters and Representative Justin Slaughter, will take effect on January 1, 2022, according to a news release. National law enforcement organizations and training agencies argue that deceptive interrogation techniques increase the likelihood of a minor making a false confession, and have advocated against these practices.
In 2012, the Justice Department opened an investigation into Chicago's interrogation practices, and dense attorneys called the city the "false confession capital of the United States."
At the time, Chicago had twice as many documented false confession cases as any city in the country, "60 Minutes" reported.
As the article notes, minors are particularly vulnerable to being coerced into making false confessions. One of the most famous incidents of coerced confessions involved five teenaged boys, who after hours of interrogation falsely confessed to raping a jogger and committing a string of aggravated assaults. The group, formerly dubbed “The Central Park Five,” spent years in prison before they were exonerated by DNA evidence that matched an existing-prisoner who confessed to the crimes. In 2003, the Central Park Five sued New York City for malicious prosecution, racial discrimination and emotional distress. After a decade of litigation, the city settled all claims for $41 million.
In the landmark case of Frazier v. Cupp 394 U.S. 731 (1969) the Supreme Court concluded that lying to suspects alone does not automatically constitute misconduct sufficient to deem a confession as involuntary and overturn a conviction based on said confession. Though the Supreme Court noted that each instance of deceptive tactics would be analyzed on a case-by-case basis, a unanimous Court concluded that law enforcement falsely telling a 20 year old murder suspect (who initially denied involvement) that his cousin had already confessed to a murder did not invalidate that suspect’s written confession as involuntary or the product of coercion.
After 50 years of case law on this point, courts have established relatively straightforward rules for when they consider lying during interrogations to be acceptable and when lying becomes a constitutional violation.
Courts are fine with police lying about factual matters, like when law enforcement claims to have evidence they do not actually have. This has included lying about a co-defendant’s confession (Frazier), lying that you have been identified as a suspect by a third party (Michigan v. Mosley, 423 U.S. 96 (1975)); and showing a suspect “dummy” reports showing the suspect’s fingerprints and hair were found at the crime scene (Arthur v. Commonwealth, 480 S.E. 2d 749 (Va. 1997) [the court noted that the police kept the false documents in a separate file from the real investigative and lab reports so there would be no confusion]).
However, Courts will typically not allow police to misrepresent your legal rights against you. In Commonwealth v. Baye 462 Mass. 246 (2012), the Massachusetts Supreme Court overturned a serial arson conviction because the officers who obtained the confession made numerous misrepresentations of the suspect’s legal rights that constituted “an affirmative interference with the defendant’s understanding of his fundamental constitutional rights,” rendering the confession involuntary. As examples of this unconstitutional conduct, the Court cited the officers’ assurances that nothing the suspect said could be used against him despite previously telling the suspect via the Miranda Warning that all statements would be used against him, actively dissuading the suspect from speaking to his lawyer after the right to counsel was invoked, and mischaracterizing the law to induce suspect to admit the fires were a ‘prank’ with an implied promise of leniency.
With all of that said, there is an obvious reason why law enforcement may engage in deceptive tactics–it works. For example, this “right to lie” also allows law enforcement to secure convictions through evidence and confessions obtained via undercover sting operations. If sting operations had to stop the moment an undercover officer was asked “you’re not a cop, right?” most criminal investigations would end before they even started. And mob movies would be a lot shorter.
Final note: there is no law anywhere that says “you have to tell me you’re a cop.” This is a myth propagated by TV shows and movies, and asking this question will not help you. If you want to see what happens if you ask an undercover cop if they’re a cop, and they say no, and then you do crimes in front of them… well, Breaking Bad’s Brandon “Badger” Mayhew can show you what happens.
Even though Officer yes-that’s-the-skinny-kid-from-Road Trip lies by claiming he would have to say he’s a cop if asked because it’s “in the Constitution,” a court likely would not deem this to be an involuntary confession or “entrapment.” An undercover bust is only deemed “entrapment” if the police induces you to commit a crime that you would not otherwise commit. And clearly Badger does not require much inducement to sell meth.
With all of this in mind, this is why some legal scholars like Virginia’s Regent Law School Professor James Duane contend that with very few exceptions, there are only four words you should ever say when engaged by law enforcement: I want a lawyer.