Archive for May 17th, 2018

So…Is it Okay to Lie?

posted by Judge_Burke @ 14:50 PM
May 17, 2018

Years ago I had a murder case. The defendant claimed that after his Miranda warning he asked for a lawyer. He claimed he not only asked for a lawyer, but he named the lawyer. The lawyer was representing him on a Workers Comp case. Pretty believable, I thought. The police officer testified that there was no request for a lawyer but he also admitted he had lied to the defendant about critical facts in the case. So, who do you believe?

Situational ethics happen, but if the officer was prepared to lie to the defendant why shouldn’t I suspect he would lie to me? Rinat Kitai-Sangero (College of Law and Business) has posted Extending Miranda: Prohibition on Police Lies Regarding the Incriminating Evidence (54 San Diego Law Review 611 (2017)) on SSRN.

Here is the abstract:

This article addresses whether lying to suspects during interrogations regarding incriminating evidence is a legitimate deceit. Despite the condemnation of lying, lying to suspects during interrogations is a common phenomenon, and has even been dubbed an “art”. This article argues that lies of this type are illegitimate because they create an increased risk of false confessions and because they force suspects in general, and innocent suspects in particular, to shape their defense in view of false evidence. Consequently, lies infringe upon fundamental principles of constitutional criminal law, such as the right to remain silent, the presumption of innocence, and the imposition of the obligation to prove the accusations on the prosecution. All the arguments against using lies ultimately revolve around the linkage between lies and the obligation imposed on the state to prove guilt.

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