Deceit, Pretext, and Trickery: Investigative Lies by the Police

Abstract

This Article has been a preliminary effort at identifying those limitations in connection with one specific type of lie-investigative lies, or lies told to people in an effort to gather evidence against them. The extrapolation of Bok's analysis developed in this Article suggests that once an individual has been identified as a suspect through the public proxy of a judge, noncoercive deception in the investigative setting is often permissible. On the other hand, in the absence of such an identification, or when deception leads the dupe to believe he has no choice but to provide the soughtafter evidence, investigative lying is wrong and should be prohibited. On this premise, warrantless "active" undercover operations and pretextual police actions are improper, unless necessary to save a life or useful as a substitute for legitimate use of force. On the other hand, deception associated with passive, bait-type stings is proper, so long as the general propriety of the sting has been subject to public debate. Trickery in connection with postarrest, precharge interrogation is also proper, so long as it does not coerce the dupe. Whether these rules should trump current constitutional doctrine where they conflict with it (or result in exclusion where impermissible deception is used) is left unresolved in this Article.