Judge Baskin
Edited by Dillon Murti, Sahith Mochalra, and Jia Lin
On October 8, 2024, Gerald Goines, an ex-Houston police officer, was sentenced to 60 years in prison for multiple killings in 2019 that he lied to cover up [1]. In an effort to put away the people he suspected to be guilty of drug trafficking, Goines essentially forged a search warrant so he could enter his suspects’ home. During the drug raid, the suspects were killed. Goines’s trial, and subsequent sentence, are unusual—not because he was brought to justice for his deceptive practices—but rather because usually, law enforcement officials are not.
A prominent contributor to the lack of enforced accountability is how pervasive deceptive police practices truly are. While many Americans are unaware that the police regularly lie, surveys of prosecutors and court professionals found that police lie in court around 20 percent of the time [2]. Whether in the form of false court testimonies or interrogative lies aiming to coerce confessions—called ruses—these practices are incredibly common [3][4]. Departments themselves often have intense cultures of lying and fraud aimed at securing convictions, including a “blue wall of silence” in which officers are conditioned to not report wrongdoing or misconduct in their departments [5]. These practices, while supposedly effective in closing cases, do not consider the negative externalities that come along with them, including false confessions, constitutional rights violations, and damaging the legitimacy of the police as a whole. This problematic culture did not form from thin air. Decades of court precedents and troublesome policing habits have laid the groundwork for today’s deceptive practices.
In the late 19th century, the Supreme Court decided Hopt v. Utah (1884), ruling that confessions obtained via physical coercion are impermissible—but only in federal courts [6]. For fifty more years, local and state courts continued to allow physically coerced confessions as valid evidence. Importantly, the Court ruled that this regulation stemmed from common law rather than from the Constitution. It was not until Brown v. Mississippi (1936) that the Court revisited and clarified regulation of interrogation methods [7]. This time, the Supreme Court ruled that any confession given that is physically coerced is impermissible in federal and state courts under the Due Process Clause of the Fourteenth Amendment [8]. The Court’s reasoning found a new interpretation of the Due Process Clause and established the standard of a “free and voluntary” confession. Miranda v. Arizona (1966) would cement this practice via the Miranda Rights, a warning given to suspects to inform them of their protection from self-incrimination and right to an attorney [9]. These warnings, derived from the Fifth Amendment, offer suspects reasonable awareness of their rights and ensure that any confessions given meet the free and voluntary condition. Miranda Rights were further protected by the Court in Dickerson v. United States (2000), when Congress was blocked from overruling the precedent set in Miranda [10]. Chief Justice William H. Rehnquist’s majority opinion argued that the practice of “Mirandizing” suspects is a constitutional rule and had become incredibly common in American culture.
While these cases moved the needle forward in terms of regulating police coercion and limiting violations of due process clauses, they are stifled by another set of cases that directly contributed to the deceptive policing we enjoy today. Mapp v. Ohio (1961) made illegally obtained evidence inadmissible in court under the Exclusionary Rule [11]. On paper, this seems to solve a lot of problems—police are encouraged to get warrants and obtain evidence the correct way. However, in practice, the Exclusionary Rule actually encourages officers to continue illegally obtaining evidence and report evidence as legal anyways. According to a study by the Columbia Journal of Law, within a year of Mapp v. Ohio establishing the Exclusionary Rule, police practice in New York had already shifted drastically [12]. From 1961 to 1962, the percentage of narcotics evidence reported to be found hidden on suspects’ bodies dropped from 34.7 percent to only 3 percent of evidence. In the same time period, the percentage of narcotics evidence reported as found or dropped on the ground rose from 16.8 percent to 43.2 percent of all evidence. This drastic shift in reporting suggests that New York police effectively made up for their deficit in evidence by illegally circumventing the Exclusionary Rule, covering up warrantless searches with the “I just found it” excuse. Additionally, police routinely “testilie” (where officers knowingly commit perjury) about their methods of collecting evidence, in order to close their cases [13]. This practice is not only problematic because of the original warrantless search, but also the illegal cover-up that follows. This pursuit of convictions over justice leads to innocent people serving time behind bars.
Not even a decade later, the Supreme Court saw the case of Frazier v. Cupp (1969) where Martin Frazier, a murder suspect, sued on the grounds that a classic police ruse was used on him unconstitutionally [14]. Just like in the movies, the interrogating officers lied to Frazier, claiming that his accomplice, Jerry Rawls, had already confessed to the killing. Because of the ruse, Frazier was convinced he had no choice but to confess. Here, the Court protected the police deception used on Frazier in the interrogation room, arguing that the ruse did not violate Frazier’s Fifth or Fourteenth Amendment rights to Due Process. Justice Marshall wrote in his majority opinion that “the fact that the police misrepresented the statements that Rawls had made is, while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible. These cases must be decided by viewing the ‘totality of the circumstances’” [15]. The majority opinion also mentioned the practical benefit of these ruses to law enforcement, citing that these practices can be useful in getting confessions. All in all, even if the facts of the case permitted the misrepresentation in that specific circumstance, the Frazier decision gave officers the greenlight on lying, leading to such tactics becoming routine. Years later, another Court decision in Colorado v. Connelly (1986) further set back interrogative protections for criminal suspects [16]. Francis Connelly had walked up to a police officer and immediately confessed to a murder. The officer swiftly arrested him, but did not know about Connelly’s chronic schizophrenia. A Colorado trial court initially ruled for Connelly, saying that the confession was not voluntary due to his condition. The Supreme Court’s 7-2 decision for Colorado moved the burden of proof for a free and voluntary confession from the police officers to the suspect. This meant that instead of officers showing that a confession was legally obtained, it then became the suspect’s job to prove that the confession was illegally obtained or coerced. In a country where the justice system claims a person is innocent until proven guilty, this burden of proof seems contradictory. Colorado v. Connelly sets a precedent that leaves defendants worse off, and once again tipping the scales towards law enforcement.
These court decisions aggregate into a culture of policing dependent on lies. In practice, the lack of protections for suspects adds up quickly. Deceptive police tactics contribute to far too many false confessions and wrongful convictions, especially for minors. Take the infamous example of the Central Park Five. The teenagers at the time were interrogated for hours on end, leading to coerced videotaped confessions for crimes they did not commit [17]. Though they eventually settled a lawsuit with New York City, their story is proof of the dangers these tactics pose to juveniles. Unsurprisingly, the Five are not alone in their story. According to the Innocence Project, false confessions lead to around 29 percent of wrongful convictions [18]. Although deceptive tactics can put guilty people behind bars, what police obtain using deception is not worth the likelihood that an innocent person could be convicted. These practices are sacrificing the validity of the broader system of policing and justice for padded stats and efficient convictions.
Texas residents are particularly affected by dishonest tactics. Immigration and Customs Enforcement (ICE) agents are no exception to the culture of deception. The American Civil Liberties Union reports that ICE agents “impersonated the police and used other deceptive tactics to gain warrantless entry into people’s homes” [19]. One story saw a woman getting a knock at her door from people who claimed to be DMV officials, asking about her car’s registration. Of course, the DMV workers ended up being ICE agents and, after confirming the woman’s identity, took her to a federal detention center where she spent three weeks in custody. Warrantless entries blatantly undermine the Fourth Amendment, but law enforcement is actually encouraged to continue deceptive warrantless entry by statutory law [20]. This is because even if the consent is obtained from the suspect through deceptive means, law enforcement still views the search or entry as receiving valid consent–a departure from normative procedure requiring ‘informed’ consent. Additionally, other agencies and police commonly engage in similar impersonations. Online tools make masquerading and catfishing much easier for the police, only making these tactics more rampant [21]. Further, this practice is commonplace because it is regarded as being incredibly effective in the field. Similar to cases of exigent circumstances, this application of the Fourth Amendment protection from search and seizure is dodgy at best. And at best, it allows for unethical, targeted deportations.
Another contributing factor is that federal agents, like ICE officers, are able to get away with this type of behavior even more than state officials. Most federal officers receive de facto absolute immunity from civilian lawsuits, meaning that they can rarely be held accountable for operating outside of the Constitution. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971), the Court held that federal agents can be sued in certain situations [22]. However, those freedoms have slowly been rolled back over the decades of precedent since. Today, there are only a few select situations in which a citizen would have any semblance of standing in a lawsuit against a federal officer. Those exceptions also rarely lead to an official being found guilty because of qualified immunity–a second level of liability protection for violations that have no precedent surrounding them. Additionally, recent federal court rulings are further pulling back the rights established in Bivens. The Eighth Circuit Court of Appeals ruled in the case of Yassin v. Weyker (2021) that state and local officers in joint federal-state task forces are given a similar level of immunity as normal federal officers [23]. State and local law enforcement is not normally privy to lawsuit immunity, as codified in Section 1983 [24]. Logically, a certain degree of immunity for federal operations makes sense. These operations are assumed to be more important than local ones, with higher stakes and larger government interests, so ensuring that law enforcement can get the job done is paramount. However, government interests are supposed to seldom trump Americans’ Constitutional rights like Due Process and freedom from unreasonable search and seizure. Further, the absolute and qualified immunity that federal agents have in nearly all cases is inconsistent with how variable a government interest is. For example, a New York police officer working on a joint task force to stop a narcotics ring would now have the same level of immunity as a federal agent working on an anti-terrorist operation essential to the nation’s national security. Under the eyes of the Court, the drug ring case would likely be categorized as having an “important” government interest–one relating to the health, safety, and welfare of Americans. On the other hand, the anti-terrorist operation’s government interest is related to national security, one of the few interests that might pass the test of strict scrutiny, just given its importance to the nation. Even though the Court would regard these government interests completely differently, the officers who violate any citizens’ rights would enjoy the exact same protections from lawsuits in both situations. Though allowing law enforcement operational capacity is important, granting absolute immunity to any officer involved in a federal operation seems overreaching. When ICE agents deceive their way into Texans’ homes or local officers in a task force coerce a false confession in an interrogation, there is rarely a path for citizens to redress the violated rights. These court decisions have led to an accountability deficit for police, much of which is simply a symptom of a larger problem.
Rather than making the public safer, deception and a lack of accountability from law enforcement causes citizens to lose faith and confidence in the institution, hurting police over time. In his book Police Deception and Dishonesty: The Logic of Lying, former FBI agent Luke William Hunt explains that police are often the closest point of contact between citizens and the government, with each interaction shaping a person’s opinion of the entire law enforcement body [25]. In the previously mentioned example about ICE officers deceiving their way into homes, the victim, Alyssa Lazo, said that since the incident, she has “been afraid of talking to the police for anything. Not even when (she) really needs help.” Her perspective on the police had completely shifted towards distrust from that singular interaction. But Lazo is not alone in this shift. During the Black Lives Matter movement in 2020, a series of protests stemming from a specific police interaction, American attitudes towards police changed enormously. A study from the University of Nebraska reported that in summer 2020, 56 percent of Americans trusted the police–13 points lower than the usual 69 percent [26]. Even just seeing video of police misconduct, as the millions of Americans participating in the BLM movement did, can damage the validity of the institution and the public’s confidence in it. Moreover, these attitude shifts are not anything new. When former NFL running back OJ Simpson was tried for double homicide, his defense was built on the notion that the Los Angeles police had mishandled and planted evidence in Nicole Simpson’s house [27]. Regardless of Simpson’s innocence or guilt, the jury believed it was realistic for LAPD to have acted unethically and acquitted him. The defense played off of the LA jury’s distrust of the police at a time when police brutality and systemic racism were at the top of the city’s mind. The OJ trial makes it clear: the public is not tolerant of obvious police depiction or misconduct. Public trust in the institution of policing is essential to its function. But tricky misconduct erodes public trust in police and the government [28].
Supporters of deceptive police tactics might argue that, while these strategies may not be morally spotless, they are too practical to give up. The coerced confession or the illegally-obtained evidence is incredibly valuable to the officers–there likely would not be a culture around deception if it didn’t provide some utility. However, other nations have shown that regulating these practices does not unfairly inhibit the police. In fact, the US is an outlier among its developed peers when it comes to police policy. Decades ago, Germany outright banned any deceptive police practices [29]. More recently, Australia and New Zealand have heavily regulated the use of lying by officers in interrogations [30]. Specifically in the UK, the British Parliament passed the Police and Criminal Evidence Act (PACE) in 1984 [31]. Created partially in response to the Brixton riots of 1981 , this act provided overarching regulation of police in the UK and outlined how they should be allowed to exercise their power [32]. PACE has been amended repeatedly over the years to keep up with public and police demands, meaning that the policy keeps up with the needs of both ends of the justice system. PACE Code C (2023) outlines acceptable treatment towards and interviews of non-terrorist suspects, banning lying or coercion in interviews, but allowing officers to omit any information they want from the suspect [33]. Additionally, PACE Code G (2012) sets up the framework for what the UK calls the “necessity test”–a checklist of requirements for an officer to work through in order to legally sidestep a warrant process [34]. Of course, police in the US are trained to run a similar mental test regarding probable cause. However, PACE outlines a more narrow set of circumstances in which police can operate without a warrant. This higher standard in the “necessity test” is coupled with greater oversight and scrutiny than US officers are subject to. Former Sussex detective and PhD Andy Griffiths explains that he was at risk of losing his job if he were to lie to suspects or not be patient enough for a warrant [35]. Griffiths mentions too that suspects were much more trusting and willing to cooperate when they knew he had that restriction in place. For Griffiths, the comparably better accountability, and resulting cooperations, made up for the lost utility of forgoing interrogative deception. Under PACE, the assumption is that the long-term public trust in the police is more valuable than the short-term victories of deceptive convictions.
Though these two countries carry many policy differences, the US is not actually that far off PACE’s regulation standards. Current policies in some parts of the US already demonstrate that ruse regulation is possible [36]. Seattle banned the use of ruses in cases where they would “shock the conscience” after a man committed suicide as a result of deceptive tactics [37] [38]. The city set the standard as “any situation or form of deception that falls outside the standards of civilized decency and seems grossly unjust to the observer,” but other ruses and deceptive tactics are fair game [39]. Though “civilized decency” and “gross unjustness” are subjective measures, they are derivative of usual standards in statutory law of what a reasonable person might think. Further, Mayor Bruce Harrell made a point to limit ruses to only a few scenarios, like defusing or de-escalating a dangerous situation or investigating a reasonably suspected crime. The Seattle Police Department policy has been in place since November 1, 2023, with no news or complaints around the code since. A new California law prohibits leading questions at traffic stops [40]. Specifically, officers cannot ask the question: “do you know why I stopped you?” Questions like those often lead to a confession before a suspect has even been questioned, arrested, or Mirandized. This is not only an issue to progressive constituents either. Indiana unanimously banned deceptive tactics against juveniles, joining nine other states who have similar policies [41].
There is no proof that ruse regulation or stricter testimony laws would unfairly inhibit police practices. Additionally, even if the regulations did hinder efficiency, that does not mean the regulations are not fair. Were the policies to include more internal accountability or testilying regulation, that would just be stronger rule of law, not impeding the police. Decades of courts taking these cases one by one and sweeping them to the side has led to a culture of policing that trades validity for quick convictions. Supporters of the broad use of deceptive police practices and a policing culture that is tolerant of them often overlook the very real damage that can be caused. Citizens are at risk of being falsely convicted and immigrants are in danger of being wrongfully deported. The result is a public that puts less trust in law enforcement, which is detrimental to the integrity of the government as a whole.
[1] Nicole Hensley, Ex-Houston Cop Goines Sentenced to 60 Year in Prison for Harding St. Killings, Houston Chronicle (2024), https://www.houstonchronicle.com/news/houston-texas/crime/article/gerald-goines-sentenced-harding-street-19823081.php (last visited January 23, 2025).
[2] M. W. Orfield, Jr. & M. W. Orfield, Deterrence, Perjury, and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts, 63 U. Colo. L. Rev. 75 (1992).
[3] Joseph Goldstein, ‘Testilying’ by Police: A Stubborn Problem, The New York Times, Mar. 18, 2018, https://www.nytimes.com/2018/03/18/nyregion/testilying-police-perjury-new-york.html (last visited Jan 23, 2025).
[4] Art of the Ruse: Does Winning a Battle Mean Losing a War? | Office of Justice Programs, https://www.ojp.gov/ncjrs/virtual-library/abstracts/art-ruse-does-winning-battle-mean-losing-war#:~:text=A%20ruse%20is%20a%20strategically,significant%20months%20of%20investigative%20work (last visited Jan 23, 2025).
[5] Andrew Eichen, Broken Trust: The Pervasive Role of Deceit in American Policing, (2024), https://www.jstor.org/stable/resrep63147 (last visited Jan 23, 2025).
[6] Hopt v. Utah, 110 U.S. 574 (1884), Justia Law, https://supreme.justia.com/cases/federal/us/110/574/ (last visited Jan 23, 2025).
[7] Brown v. Mississippi, 297 U.S. 278 (1936), Justia Law, https://supreme.justia.com/cases/federal/us/297/278/ (last visited Jan 23, 2025).
[8] U.S. Const. amend. XIV, § 1.
[9] Miranda v. Arizona, 384 U.S. 436 (1966), Justia Law, https://supreme.justia.com/cases/federal/us/384/436/ (last visited Jan 23, 2025).
[10] Dickerson v. United States, 530 U.S. 428 (2000), Justia Law, https://supreme.justia.com/cases/federal/us/530/428/ (last visited Jan 23, 2025).
[11] Mapp v. Ohio, 367 U.S. 643 (1961), Justia Law, https://supreme.justia.com/cases/federal/us/367/643/ (last visited Jan 23, 2025).
[12] J. F. Hart, Effect of Mapp v. Ohio on Police Search-and-Seizure Practices in Narcotics Cases, 4 Columbia J. of L. & Soc. Probs. 87 (1968). https://search.lib.utexas.edu/permalink/01UTAU_INST/apl7st/cdi_proquest_miscellaneous_59438860
[13] Andrew Eichen, Prevalence of Lying to Suspects during Interrogations and Police Perjury (2020).
[14] Frazier v. Cupp, 394 U.S. 731 (1969), Justia Law, https://supreme.justia.com/cases/federal/us/394/731/ (last visited Jan 23, 2025).
[15] See [13], Frazier v. Cupp, 394 U.S. 731 (1969), Justia Law, https://supreme.justia.com/cases/federal/us/394/731/ (last visited Jan 23, 2025).
[16] Colorado v. Connelly, 479 U.S. 157 (1986), Justia Law, https://supreme.justia.com/cases/federal/us/479/157/ (last visited Jan 23, 2025).
[17] Yusef Salaam, Kevin Richardson & Raymond Santana, We Are the ‘Exonerated 5.’ What Happened to Us Isn’t Past, It’s Present., New York Times, Jan., 2021, https://www.nytimes.com/2021/01/04/opinion/exonerated-five-false-confessions.html.
[18] DNA Exonerations in the United States (1989 – 2020), Innocence Project, https://innocenceproject.org/dna-exonerations-in-the-united-states/ (last visited Jan 23, 2025).
[19] Leila Rafei, This Deceptive ICE Tactic Violates the Fourth Amendment | ACLU, American Civil Liberties Union (Apr. 12, 2023), https://www.aclu.org/news/immigrants-rights/this-deceptive-ice-tactic-violates-the-fourth-amendment (last visited Jan 23, 2025).
[20] Privacy and Police Undercover Work | Office of Justice Programs, https://www.ojp.gov/ncjrs/virtual-library/abstracts/privacy-and-police-undercover-work#:~:text=Although%20the%20warrant,through%20deceptive%20means (last visited Jan 23, 2025).
[21] Elizabeth E. Joh, Bait, Mask, and Ruse: Technology and Police Deception, 128:246 (2015).
[22] Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), Justia Law, https://supreme.justia.com/cases/federal/us/403/388/ (last visited Jan 23, 2025).
[23] Yassin v. Weyker, (8th Cir. 2022).
[24] 42 U.S. Code § 1983 - Civil action for deprivation of rights, LII / Legal Information Institute, https://www.law.cornell.edu/uscode/text/42/1983 (last visited Jan 23, 2025).
[25] Shibboleth Authentication Request, https://ezproxy.lib.utexas.edu/login?url=https://utxa.eblib.com/patron/Authentication.aspx?ebcid=5f14b16cf591460584319da8677b0e0f&echo=1&userid=%5Eu (last visited Jan 23, 2025).
[26] Catherine Vitro et al., Attitudes about Police and Race in the United States 2020–2021: Mean-Level Trends and Associations with Political Attitudes, Psychiatric Problems, and COVID-19 Outcomes, 17 PLoS One e0271954 (2022), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9328541/ (last visited Jan 23, 2025).
[27] O.J. Simpson trial | Summary, Lawyers, Judge, Dates, Verdict, & Facts | Britannica, (2025), https://www.britannica.com/event/O-J-Simpson-trial (last visited Jan 23, 2025).
[28] Julia Simon-Kerr, Systemic Lying, 56 William & Mary Law Review 2175 (2015), https://scholarship.law.wm.edu/wmlr/vol56/iss6/5.
[29] AMANDA CAIN, NINA J. WESTERA & MARK KEBBELL, Interviewing Suspects in Australia and New Zealand, in International Developments and Practices in Investigative Interviewing and Interrogation (2015). https://www.taylorfrancis.com/chapters/edit/10.4324/9781315769677-17/interviewing-suspects-australia-new-zealand-amanda-cain-nina-westera-mark-kebbell
[30] See [28], AMANDA CAIN, NINA J. WESTERA & MARK KEBBELL, Interviewing Suspects in Australia and New Zealand, in International Developments and Practices in Investigative Interviewing and Interrogation (2015).
[31] Police and Criminal Evidence Act 1984 (PACE) codes of practice, GOV.UK (2023), https://www.gov.uk/guidance/police-and-criminal-evidence-act-1984-pace-codes-of-practice (last visited Jan 23, 2025).
[32] Brixton riots 1981: What happened 40 years ago in London?, BBC Newsround, Oct. 24, 2019, https://www.bbc.com/newsround/50035769 (last visited Jan 23, 2025).
[33] PACE Code C 2023 (accessible), GOV.UK, https://www.gov.uk/government/publications/pace-code-c-2023/pace-code-c-2023-accessible (last visited Jan 23, 2025).
[34] PACE Code G 2012 (accessible), GOV.UK, https://www.gov.uk/government/publications/pace-code-g-2012/pace-code-g-2012-accessible (last visited Jan 23, 2025).
[35] How the UK Police Interview Suspects, Innocence Project, https://innocenceproject.org/how-the-uk-police-interview-suspects/ (last visited Jan 23, 2025).
[36] Irina Khasin, Honesty Is the Best Policy: A Case for the Limitation of Deceptive Police Interrogation Practices in the United States, 42 Vanderbilt Law Review 1029 (2021)
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol42/iss3/7
[37] Seattle Police Department Policy Manual, 5.300 (2023) https://seattle.gov/documents/Departments/Police/Policy_Review/5.300_Patrol-Ruses.pdf
[38] Seattle man kills himself after officer falsely says he critically injured woman in crash, NBC News (2020), https://www.nbcnews.com/news/us-news/seattle-man-kills-himself-after-officer-falsely-says-he-critically-n1114076 (last visited Jan 23, 2025).
[39] See [36], Seattle Police Department Policy Manual, 5.300 (2023) https://seattle.gov/documents/Departments/Police/Policy_Review/5.300_Patrol-Ruses.pdf
[40] AB 2773- CHAPTERED, https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220AB2773 (last visited Jan 23, 2025).
[41] Indiana police will no longer be able to lie to children to gain confessions, Fox 59 (Apr. 12, 2023), https://fox59.com/indianapolitics/indiana-police-will-no-longer-be-able-to-lie-to-children-to-gain-confessions/ (last visited Jan 23, 2025).
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