Presented at the 1999 Ohio University Student Conference on Applied Ethics. The opinions expressed are the author’s and do not necessarily reflect those of Ohio University or the Institute for Applied and Professional Ethics.

Matthew Ciske – Ohio University

The central question of my research this year is Are police officers and other criminal investigators ethically permitted to employ deception or lie during the course of a case and, if so, what are the moral boundaries they must remain within? My answer to the first part is strongly affirmative. Further, I believe there to be cases where a police officer is morally obligated to lie. In this paper, I will present a discussion of why philosophers should be interested in law enforcement ethics, what the role of police is in society, particular sorts of police lies, how police officers justify deception, and the consequences of police deception. Please note, though, this is a work-in-progress.

Everyone, from prostitutes to philosophers, is affected by the conduct or misconduct of police officers. Philosophers can assist by calling into question standard ethical precepts and providing tests or methods for evaluating options, though what is easily understood in the classroom may become clouded or more complicated in the field. Some goals of philosophers who deal with law enforcement ethics are to:

sensitize personnel to the moral dimensions of their work

to teach moral language

to identify and appraise moral arguments and articulate principles for moral reasoning

to apply the end results more generally to broader ethical theory (Elliston & Feldberg, p.3)

Whether motivated by self-interest or a desire to contribute to general ethical understanding, the philosopher may come to appreciate the drama of police work, the tensions between concrete moral decisions and commonly held principles of conduct. The nature of police training and work requires police officers to use both intellectual and moral abilities. Ethics instruction builds moral character in officers and on-the-job use of moral reasoning enables police administrators to identify fundamental problems and balance often conflicting laws, community expectations, and their own consciences (p.2).

While it has been traditional to describe the role of police in the context of social contract theory with police officers as agents charged with the enforcement of law such a definition here is not sufficient. Instead, this paper will be framed in the context of the definition presented by Bittner in The Capacity to Use Force as the Core of the Police Role:

“The role of the police is best understood as a mechanism for the distribution of non-negotiable coercive force employed in accordance with the dictates of an intuitive grasp of situational emergencies.” (p.23)

He notes that by “non-negotiable coercive force” it is meant that when a deputized police officer decides that force is necessary he [the cop] is not accountable to anyone–so long as he acts within the boundaries of the situation.

Peace by peaceful means is a trait of modern society–it is evidenced by the establishment of international diplomacy with the task of controlling outbreaks of war, the virtual elimination of force from the administration of justice, and the social condemnation of using violence as being of a low-class mentality. This is not to say, however, that society is blind to the frequent occurrence of violence within it. The use of force is tightly restricted in modern society, limiting its use to three general categories. Self-defense is generally permissible when used as an absolute last resort–all other methods must have been considered, including retreat, and either attempted or determined to be impossible. Caretakers like prison guards and hospital orderlies are also permitted to use force for self-defense and to enforce a court order for confinement or restricted freedom. Police authority to use force, though, is significantly different from the previous two examples. Of these three categories, only one is granted near limitless authority to use force–the police. The only explicit restrictions placed on police use of force are limits on the use of deadly force, that the officer must be performing his legitimate duties, and that the force must not be applied in a frivolous or malicious manner.

Defining the police role as strict law enforcement becomes obviously too narrow when one considers that approximately one-third of a police agency’s time and resources is devoted to investigating crimes and pursuing fugitives. If only a portion of a cop’s work load is devoted to performing ‘law enforcement’ tasks, what is he doing with the remaining time? Among other tasks, police officers are called on to obtain and maintain order in large crowds, remove drunk patrons from bars, mediate domestic disputes, and deal with medical and psychiatric emergencies–taken together, situations that require the use of force without invoking law (Bittner, p. 19). Some might argue that these chores are the responsibilities of other professionals–doctors, EMTs, tavern owners, and counselors–even though those practitioners are the ones who may have summoned police assistance. And for what reason? By the rules society has established, the practitioner lacks the authority to evict a patron or family member by force or to compel a critically ill person to check into a hospital or clinic. Police work, then, requires the overcoming of actual or potential resistance.

Four types of domination and control are available to cops: authority, power, persuasion, and physical force (Klockars, p.228). Authority is marked by unquestioning recognition by those who are asked to obey, neither coercion nor persuasion is needed. Those who obey do so because they understand the command to be right and necessary and they understand the person or institution to be rightly entitled to issue the command (p. 228). It is impossible to know what proportion of encounters between police and citizens are marked by relations of authority.

Power is the chance of a man or a number of men to realize their own will in a communal action even against the resistance of others who are participating in the action (p. 228). This form of domination is similar to authority in that it is a social thing, but can be distinguished from authority in two ways–power calculates the cost of resistance, must deal with the idea of if resistance is made that it will be overcome–police are subject to extreme restrictions on action when reacting to the provocative practices of others.

Persuasion involves seeking to overcome resistance through the use of words and arguments that induce in the mind of the person persuaded the belief that he or she ought to comply (Klockars, p. 229). This form of domination and control removes the probability factor in the power definition while maintaining the officer’s claim to authority or power. A person is not considered persuaded until he believes he ought to do or behave in a certain manner. Lying or deceiving is a subset of this type of domination. The lie communicates a message the sender knows to be false with the intention of taking from the mind of the person receiving it the capacity to draw its own conclusion. Errors are excused on the ground they lack the intent to deceive.

Physical force differs from the previous three in that the will of the person being coerced is irrelevant to the means used to obtain compliance. Like lying, it affects a person’s right to determine how to behave, though lying simply presents a false reality while force disregards will completely. Force is rarely approved of by those to whom it is applied, as is demonstrated by a general unwillingness of society to give approval or legitimacy to its use (p.229).

Brooks suggests the decision to lie involves a utilitarian calculus–a belief that the truth will cause a greater evil than the deception and that individuals, including cops, find themselves in these situations frequently (p.5). Common areas of deception in law enforcement include the use of wiretaps, informants, stings, and undercover operations. These common deceptive practices involve lying to individuals believed to be involved in criminal activity (p.5). Four major assumptions are necessary on the part of the police officer. The first is the operative assumption of guilt–guilt is assumed as a necessary working premise in searches and interrogations. The officer is often not in a position to alter this assumption until some action results in disconfirmation. Secondly, the officer is obliged to assume that the suspect is dangerously guilty–the ‘worst of all possible guilt’ assumption. The cop must be prepared for danger and understand the one who has the most to hide will try the hardest to evade responsibility. Cops deal frequently with the worst of people, places, and situations and must view them in a context of guilt–the ‘great guilty place’ assumption. In this ‘great guilty place’ the officer knows that people have commited many crimes for which they were not caught, obligating the officer to the ‘not guilty, this time’ assumption (Klockars, p.60).

Deception can occur in any or all three stages of the detecting process–investigation, interrogation, and court testimony. According to Skolnick, each stage is subject to increasingly stringent normative constraints (p. 77). In the investigation phase of a case police are permitted by the courts to engage in deception and are trained to do so (p. 80). Methods may include the use of wiretaps, informants, undercover agents, and the possession and sale of illegal materials or substances. The line between what is acceptable and what is not is that of entrapment–the deception may be employed to up to the point that an ‘…agent of the government initiates a course of action that induces an otherwise innocent person to commit a crime in order that the government may then prosecute (Kleinig, p.152).’ The rule of thumb then being that the police may use deception to capture wolves and not lambs. Courts recognize that police deal mostly with wolves provide at least tacit approval of deceptive strategies and techniques (Skolnick, p. 82). It is being recognized that these deceptive practices will be used against those who are reasonably suspected of engaging in criminal behavior or otherwise acting in an unjust manner–people who are willing to do anything they can to avoid being detected and made accountable for their crimes (Kleinig, p. 132). Criminals have every reason to expect that force and deception will be used against them, as they employ it in their own escape (p.133). The police officer in this situation must take several things into account including what sorts of methods are permissible and what the costs are. Skolnik suggests that judicial acceptance of deception in the investigative process has a positive affect on the moral acceptance of the same methods by detectives in the interrogation and testimony phases, as well (p. 83).

Interrogation tactics employing deception vary widely, though they all represent the adversarial nature of this phase of a case (Kleinig, p. 143). The goal of an interrogation or criminal interview is to obtain factual information about a crime and the confession of the person responsible for it. Some methods seem clearly illegal, like those that deny or distort the meanings of the Miranda rules that guarantee at least certain minimum conditions of conduct (p. 142). Others may take the form of distorting the seriousness of the crime–engaging in victim blame or suggesting to a murder suspect that, for example, the victim is still alive. Threats or promises may also be opportunities for deception–telling a suspect that confessing will result in less jail time or engaging in the good cop/bad cop method of questioning. Fabricating claims of evidence, like appealing to a suspect’s conscience, are perfectly legal methods of deception (Hansen, p. 51).

Testimonial deception may be undertaken for any number of reasons, including cases where the motivation is to conceal criminal behavior on the part of the investigator or cover up investigative incompetence (Kleinig, p. 146). There are, though, a significant number of cases where the motivation is a desire to secure the conviction of those who are factually or morally guilty and circumventing apparent deficiencies in the criminal justice system (p. 146). The task of police officers is to deal with factual guilt–not legal culpability–and many officers are frustrated by the exclusion of evidence on the basis of a technicality or a lost case on the grounds of unreasonable doubt on the part of the jury. The police believe they have done their job and desire it concluded appropriately–criminals get what’s coming to them, society is protected from a predator and probable liar, and liberty is secured (p. 149).

This account of when police officers have the opportunity to employ deception may be misleading–we have only explored lying in the context of a criminal case. Since the early 1900s Supreme Court and other judicial rulings have created the impression that the judiciary exercises control over police, even though those rulings are not binding norms for police work (Bittner, p.23). The rulings merely provide that if police are to set a criminal case in motion then there are certain legally restricted ways in which they must work. Outside of these cases, judges typically only take notice of police deception or other practices if a citizen makes a claim in civil court. Two categories of deception–police placebos and blue-lies are worth examining, even though they occur outside of a strict application of law. For the legitimacy of these lies the officer must rely on their experiences, their values, and the occupational culture of police work.

Police placebos are lies commonly told by police officers for the benefit of the person being lied to. Examples of placebos can be as simple as telling a homeowner who was burglarized that the burglary was probably committed by a small-time crook who picked the house at random when the officer can clearly see that the crime was effected by a professional housebreaker who likely scouted it out ahead of time or telling the family of a car accident fatality that their relative died instantly and painlessly when his experience as a highway patrolmen indicates otherwise. Others may be more elaborate–Klockars presents a case where a police sergeant tells two brothers, who are likely schizophrenic that he has called Washington, D.C. and requested a team of highly trained invisible agents who deal exclusively with the sorts of invisible attackers that are bothering them (Klockars, p.231). These placebos are told for the purpose of easing a person’s fears and work only so long as the credibility of the deceiver is intact. To be morally justifiable the placebo must be given partly for the benefit of the person being lied to. It sponsors the impression of a meaningful response to the problem as it is understood by the victim–though in most cases the perception of the deceived is wrong–whether it be caused by mental illness or someone who believes that police have the resources to investigate every radio theft or bicycle-snatching. Before employing a placebo the officer must determine or at least assume the person will not be better served by some other non-deceptive treatment (p. 231).

Blue-lies are told to control a person, not offer comfort or help, as was the case with police placebos. Officers derive the legitimacy of this deceptive practice from a general right to take control of an emergency situation. Blue-lies are always risky–both legally and situationally–if there is another more efficient method available, lying may simply be a stupid choice. Occasionally police may feel compelled to lie and pursue non-legal intervention when the legal legitimacy required to do the work is somehow lacking (p.232). In other cases, though, employing deception is preferred to using physical force An example of a blue-lie from Klockars involves a police officer telling an abortion clinic protester that he is recovering from surgery and would be caused great pain if he were to have to pick her up and carry her from the building, prompting the woman to agree to walk out with them (p.232). Brooks offers a scenario in which the police falsely tell a newspaper that they have disrupted a major drug supplier in an effort to use the resulting news report to complete an undercover sting operation (p. ???). So blue-lies may exert control directly or indirectly over a suspect.

It appears that opportunities to lie abound in police work and those opportunities are often seized. What follows here is an account of how police officers might approach situations where deception seems called for. Police officers have a duty to uphold the law of the jurisdiction in which they work, AND they have an obligation to maintain order and a myriad of other duties, as were outlined earlier. The question now is when and to what extent a morally good end justifies the use of morally or legally dangerous means. In these situations the police officer finds himself in a position of having to choose between two wrongs, as illustrated by Klockars as the Dirty Harry problem, though street stops and suspect interrogations can fit the same framework (p. 58). In these situations the officer cannot be both just and innocent.

It must be proven, or reasonably assumed, that an officer is, in fact, in a situation where there exists a morally good end to be attained and a morally dirty (in a universal sense) means to be employed. The second condition is an empirical or epistemological one that creates a connection between the dirty act and the good end (p. 57). It must be known that the deception will result in the good end. In some cases, lying is not only ineffective, it is a stupid thing to do (Klockars, p. 232). As absolute certainty is generally held to be impossible we may think here in terms of probabilities. One must follow with the additional question of ‘Are there any non-dirty methods that are more likely to achieve the good end?’ The ability of a cop to know in advance whether a and only a dirty means will work rests on the professional competence of the officer and the range of legitimate options available to him (p. 62). It follows that the better a cop is at using legal means, the less likely he is to use dirty ones.

The final question an officer must consider is whether the effort will be in vain (Klockars, p. 58). Again, this requires a high degree of professional competence. The officer must realize that constantly forcing an assumption of guilt on any and everyone will lead him astray as often as it confirms his suspicions (p. 61). If a cop is still willing to use dirty means to achieve an unquestionably good end and risk becoming guilty himself, then he knows he has behaved justly in that situation.

Police find prevention and punishment of criminal behavior to be a good thing and are intimately aware of the availability of dirty means to achieve that end. The cultural norm of reciprocity implies a direct and natural relation between wrongful acts and their punishment (p. 65). Failure of cops to recognize that deception applied outside of the conditions just discussed are of the same class as lies told by criminals is reinforced by an occupational culture that simply denies the dirtiness of its means. It is unlikely that a moral cop could fit this mold–to do so would require him to regard his actions as substantively no different from anyone else. Prospects for punishing a cop for dirty means is unlikely, and when confronted with the prospect of jury condemnation the officer will rely on the subcultural assertion that ordinary citizens cannot appreciate the same moral and technical distinctions they face (p. 69).

What, then, are the consequences of police deception? Law enforcement officers are not obligated to tell everyone about everything and a suspected criminal may not have any expectation of truthfullness (Brooks, p.6). A ‘no comment’ is not a lie–disagreements over public disclosure is a matter for the courts, but the public does have a right to expect truthfullness. Deception erodes public confidence and may create a perception of law enforcement as being of the same sort as felons and fugitives, even if the deception is publically acknowledged later, as Bok would demand (p.11). Lying is effective only as long as the person being deceived believes and the deceiver’s credibility remains intact–public disclosure of previous deception puts that at risk.

WORKS CITED