Watch out for this standards-of-conduct trap
Are you prepared to be cross examined about lying during an investigation?
Officers are being set up by their agencies’ standards of conduct to take a big fall in court. Here are two standards of conduct on truthfulness.
The first is a state agency:
Honesty. Honor and trustworthiness is the cornerstone of this department’s relationship with the public. It is also the cornerstone of the employee/employer relationship as well. The Department of Public Safety has zero tolerance for acts of dishonesty in any form or manner.
The second is a federal agency.
INTRODUCTION. …All employees must maintain high standards of honesty … to ensure the proper performance of government business and the continued trust and confidence of the public.
FALSE STATEMENTS. Employees will not make false, misleading, incomplete, or ambiguous statements, whether oral or written, in connection with any matter of official interest.
The Problem in the Standards
Sound familiar? They also sound laudable. But, they don’t take into account the reality that cops practice deception as a regular part of their jobs.
The U.S. Supreme Court has long sanctioned what it calls “strategic deception” in the course of criminal investigations. United States v. Russell, 411 U.S. 423, 434 (1973). ("Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer.")
Even criminal defense attorneys understand this necessity, http://my.execpc.com/~xxxlaw/GP03-98.htm
[T]he Courts do understand that in the real word, a world in which crime loves darkness, stealth, and concealment, crime can sometimes only be detected and prosecuted through those same means.
Standards of conduct, like policies and procedures, are good things for many reasons. But both are treasure troves for cross examination. Before a police agency adopts a standard or policy it should be vetted as to what ammunition it might provide criminal defense attorneys or plaintiffs’ lawyers.
Include a local prosecutor and the attorney that represents the agency and officers in civil litigation in that vetting process. I would have told the state and federal agencies with the above standards on truthfulness that they were setting their officers up for the following cross-examination.
The Problem in Court
Suppose you used some lawful strategic deception while interviewing a suspect. During a lengthy interview you told the suspect she was caught on a surveillance camera and an eye witness had identified her, both of which are false.
At a suppression hearing, the court held your deceptions were lawful and you are now being cross examined by the defense attorney in the criminal trial.
Q: Officer, do you have written Standards of Conduct?
Q: When did you first learn about them?
Q: How did you learn about them?
Q: Are they supposed to govern your conduct as an officer?
Q: Would you say they are one of the most important guides for your conduct?
Q: Directing your attention to the Introduction, please read the highlighted portion to the jury.
A: All employees must maintain high standards of honesty to ensure the proper performance of government business and the continued trust and confidence of the public.
Q: Is lying maintaining a high standard of honesty?
Q: On page 3, under the heading False Statements, please read the highlighted portion.
A: Employees will not make false, misleading, incomplete, or ambiguous statements, whether oral or written, in connection with any matter of official interest.
Q: Was your investigation of my client a matter of official interest?
Q: In another standard banning workplace violence, there is an exception for “the use of force in accordance with agency policies regulating its use in the conduct of law enforcement activities,” correct?
Q: So, when your agency wishes to make exceptions to a standard to permit you to conduct law enforcement activities, it does so, correct?
Q: There is no exception to the maintaining high honesty or false statement standard, is there?
Q: You lied to my client during your interview of her, didn’t you?
Q: You lied to her more than once, didn’t you?
A: And you’ve lied to citizens more times than you can count, haven’t you?
Q: You’re trained in how to use lies, aren’t you?
Q: And you don’t expect to receive any discipline for the lies you told in your investigation of my client, do you?
If the officer tries, “But, the law allows us to use that kind of deception,” chances are she’s going to get cut off at the “but.” If she doesn’t get cut off by opposing counsel at the “but,” it’s still a win for the other side because here is the next question:
Q: But, according to your agency’s standards, it doesn’t allow lying to citizens, correct?
Q: So, either it truly doesn’t allow officers to lie or you and your agency are just pretending – which is it?
The solution is to fix the standard so it provides for the reality of policing, just as we do with workplace violence and the use of force. That exception is much less necessary when it comes to testifying before lay jurors who understand your need to use force in fighting crime. Many, however, forgetting that undercover work is based on a lie, are shocked that you are legally authorized to lie – even beyond undercover work.
As I travel the nation training on police ethics, use of deception, or courtroom testimony, I offer the Eugene Police Department’s Standard of Conduct as an example:
As an employee, you may not knowingly, recklessly, or negligently convey or provide information which is dishonest, misleading, or a misrepresentation except as necessary in the course of conducting an investigation. [Emphasis added.]
Better yet, simply add to your current standard “except as authorized by the courts” which lets the jury know your deception was legal. Of course, if your agency makes this change you won’t be facing the above cross-examination.