Virtually all interrogations - or at least virtually all successful interrogations - involve some deception. As the United States Supreme Court has placed few limits on the use of deception, the variety of deceptive techniques is limited chiefly by the ingenuity of the interrogator. Interrogators still rely on the classic "Mutt and Jeff," or "good cop, bad cop," routine. Interrogators tell suspects that nonexistent eyewitnesses have identified them, or that still at-large accomplices have given statements against them. Interrogators have been known to put an unsophisticated suspect's hand on a fancy, new photocopy machine and tell him that the "Truth Machine" will know if he is lying. Occasionally, an interrogator will create a piece of evidence, such as a lab report purporting to link the suspect's bodily fluids to the victim. Perhaps most often, interrogators lie to create a rapport with a suspect. Interrogators who feel utter revulsion toward suspects accused of horrible crimes sometimes speak in a kindly, solicitous tone, professing to feel sympathy and compassion for the suspect and to feel that the victim, even if a child, should share the blame. At the very least, the successful interrogator deceives the suspect by allowing the suspect to believe that it somehow will be in the suspect's best interest to undertake the almost always self-defeating course of confessing. Because most deception is employed only after the suspect executes a valid waiver of Miranda rights, Miranda offers suspects little protection from deceptive interrogation techniques. Thus, commentators have increasingly looked to the volllntariness requirement of the Due Process Clause as a basis for limiting these techniques. These commentators have offered a variety of rationales for the voluntariness requirement - such as equality, dignity, and trust - to justify limiting the use of deception. On close scrutiny, however, none of these rationales provides a sound basis for prohibiting or drastically limiting the use of deception during interrogation. Presumably in recognition of the fact that these rationales have somewhat limited resonance with the Court, with legislators, and with the public at large, some commentators have now focused on the reliability rationale for the voluntariness requirement. A confession is unreliable when the person who gives it actually had nothing to do with the crime to which he purports to confess.
Deceptive Police Interrogation Practices: How Far is too Far?,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol99/iss5/10