Transcript Evidence 6 Hours - AELE's Home Page

Deception Operations:
Police Attorney Role
- 45 Minutes Jeff Fluck
Senior Instructor
Legal Division
Federal Law Enforcement Training Center
912-554-4218 – [email protected]
Rules of Engagement
• Questions anytime
– Silence = Understanding
– Please:
• Hand up
• Courtroom volume
The Slides
The Handout
The Objective
Identify ways that
police attorney review
can improve outcomes
of police deception
operations
1. Prosecutable cases 2.
Winnable cases
3. Post-verdict success
4. Community relations
Overview
I.
II.
Introduction
The Law and
Deception Operations
A.
B.
C.
D.
E.
Entrapment
Deception during Interrogation
Ruse Entries to Search or Arrest
The Undercover LEO
Common Elements
Overview
III. Attorney-Advisor Role
Beyond Bare Legal
Compliance
A.
B.
C.
D.
E.
Adding Elegance to the Design
Adding Jury Appeal and Avoiding Jury
Nullification
Maximizing Sentence
Anticipating Appeal
Enhancing Community Relations
I. Introduction
• Caveats:
– Personal opinion – NOT position of FLETC, etc.
– Federal focus
• The Two Faces of Deception
– Anansi the Spider
– Iliad
– Coyote the Trickster
– Loki
– Kitsuni the Shape Shifter
• The Modern Military Parallel
I. Introduction
• Resources
– http://www.fletc.gov/legal/cletp.htm
• “CLETP Downloads and Links”
• “FAQs from CLETPs”
– Cases & Research Resources
– Checklist
– Detecting Deception:
• Paul Ekman, Telling Lies,
W.W. Norton & Company
[second revised edition 2001]
II. The Law and Deception Operations
A.
B.
C.
D.
E.
Entrapment
Deception during Interrogation
Ruse Entries to Search or Arrest
The Undercover LEO
Common Elements
II. The Law and Deception Operations
A.
B.
C.
D.
E.
Entrapment
Deception during Interrogation
Ruse Entries to Search or Arrest
The Undercover LEO
Common Elements
A. Entrapment:
Law Enforcement Mission
?
Stop
Catch
Crime
Criminals
A. Entrapment:
Law Enforcement Mission
?
Create Crime
Create Criminals
A. Entrapment:
Variations
AKA…
Classic Subjective
approach,
Majority view
Due
Objective
process approach,
Minority view
Proponent Analytic focus
Federal
Defendant
predisposition
Model
Penal
Code
Government
misconduct
Analysis of Classic
Entrapment Defense
Government Inducement:
Did a Government agent
take the first step that
led to the crime?
No
Entrapment
defense
FAILS
Yes
Predisposition: Was accused already
predisposed to commit the crime?
Yes
Analysis of Due Process
Entrapment Defense
Government Inducement:
Was Gov’t’s inducement
so outrageous it shocks
the judicial conscience?
Yes
Entrapment defense
SUCCEEDS
No
Entrapment
defense
FAILS
In
which
case…
UNLESS [sometimes]
accused NEEDS convicting
Defeating Entrapment
• How does Government defeat the defense
of entrapment at trial? By showing:
The Government’s inducement
was mild
The defendant was
predisposed to
commit the
offense
Defeating Entrapment
Mild inducements:
 Scheme underway
 Reasonable offer
 Single offer
 Appeals to
unsympathetic motive
 Merely provides
opportunity
Defeating Entrapment
Problematic inducements:
 Gov’t hatches scheme
 Outrageous offer
 Excessively repeated offers
 Appeals to noble motive
 Violence
 Threats of
violence
Defeating Entrapment
Defendant predisposed:
 Defendant hatches scheme
 Prior criminal history
 Possession of instrumentalities
 Criminal know-how
 Ready acceptance
 Proposes
further
crimes
Defeating Entrapment
Defendant NOT predisposed:
 No criminal record
 First offense
 Otherwise law-abiding
 Weak-willed, emotionally unstable,
or otherwise
easily-influenced
or vulnerable
Defeating Entrapment
Mild inducement
Defendant predisposed
Nature and seriousness of offense:
 This crime endangers community
 This crime is on the increase
 Lack of effective
enforcement
alternatives
Defeating Entrapment
Mild inducement
Defendant predisposed
Nature and seriousness of offense
Threat posed by criminal
 This criminal endangers community
 This criminal isn’t slowing down
 Lack of effective enforcement
alternatives to convict this criminal
Interlude:
O3 Experience
A.
B.
C.
D.
E.
Entrapment
Deception during Interrogation
Ruse Entries
Criminal conversation:
The
Rights advisement NOT
Underrequired IF criminal does not
cover
know interrogator is LEO AND
LEO
criminal is NOT in custody
Common
II. The Law and Deception Operations
A.
B.
C.
D.
E.
Entrapment
Deception during Interrogation
Ruse Entries to Search or Arrest
The Undercover LEO
Common Elements
B. Deception During Interrogation
Deception
CONVICTION
Confessions and admissions
Often
Tolerated
Interrogation
Knowing, intelligent & voluntary waiver
Miranda rights warning
Rarely
Tolerated
B. Deception During Interrogation
Deception to Induce Rights Waiver
– Miranda v. Arizona (4-1-4) (1966):
• “Moreover, any evidence that the accused
was threatened, tricked, or cajoled into a
waiver will, of course, show that the
defendant did not voluntarily waive his
privilege.”
B. Deception During Interrogation
Deception to Induce Rights Waiver
– Missouri v. Seibert (4-1-4) (2004):
• “The manifest object of question-first is to get
a confession the suspect would not make if
the suspect understood his rights at the
outset.”
B. Deception During Interrogation
Deception to Induce Rights Waiver
– Moran v. Burbine (6-3) (1986):
• Deceiving public defender about police plan
to interrogate defendant and failing to tell
defendant that public defender had tried to
reach him did not invalidate rights warning
and confession
B. Deception During Interrogation
Deception to Induce Rights Waiver
– Colorado v. Spring (7-2) (1987):
• “Spring nevertheless insists that the failure…
to inform him that he would be questioned
about the murder constituted official
"trickery" sufficient to invalidate
his waiver of his Fifth Amendment
privilege… we reject his conclusion.”
B. Deception During Interrogation
Deception to Avoid Rights Warning
– Sixth Amendment caveat for indicted or
formally charged defendants:
• Right to counsel violated when jailhouse
informant, LEO posing as non-LEO
or other government agent
“deliberately elicits” incriminating
statements once “adversarial
judicial proceedings” have
begun
B. Deception During Interrogation
Deception AFTER Rights Waiver
– Colorado v. Connelly (7-2) (1986):
• Some “police overreaching” must be present
– Voluntariness
– Determined by totality of circumstances:
Nature, number & duration of interrogator ploys
United States v. LeBrun
Susceptibility of subject
B. Deception During Interrogation
Deception AFTER Rights Waiver
• Interrogator tactics
–
–
–
–
–
Violence
Threats of violence
Bribes
Deprivation
Environmental
manipulation
– Deception and
trickery
• Susceptibility
–
–
–
–
–
–
–
–
Age
Education
Intelligence
Experience
Pain
Intoxication
Fatigue
Mental instability
B. Deception During Interrogation
Deception AFTER Rights Waiver
– Colorado v. Connelly (7-2) (1986):
• Some “police overreaching” must be present
– Voluntariness
– Determined by totality of circumstances:
Nature, number & duration of interrogator ploys
Susceptibility of subject
Fundamental Fairness
B. Deception During Interrogation
Deception AFTER Rights Waiver
• Interrogator misbehavior offends two societal
values:
Voluntariness Overborne Will
Reliability –
False Confession
Due Process
Evidence
Shameful LEO
Behavior
Erroneous
convictions
Deception will render confession involuntary
when it is calculated to produce a false
statement
B. Deception During Interrogation
Deception AFTER Rights Waiver
• Interrogator misbehavior offends two societal
values:
Voluntariness Overborne Will
Reliability –
False Confession
Due Process
Evidence
Shameful LEO
Behavior
Erroneous
convictions
Deception will render confession involuntary
when it is so extreme it could reasonably make
an innocent person confess
B. Deception During Interrogation
Deception AFTER Rights Waiver
Deception will render confession involuntary
when it is so extreme it could reasonably make
an innocent person confess
• Interrogator deception can misrepresent:
– Past: What happened
– Present: Strength of evidence
– Future: Consequences
B. Deception During Interrogation
Deception AFTER Rights Waiver
Deception will render confession involuntary
when it is so extreme it could reasonably make
an innocent person confess
• Interrogator deception can misrepresent:
– Past What happened
– Present: Strength of evidence
– Future: Consequences
B. Deception During Interrogation
Deception to Induce Rights Waiver
LEO know victim is dead, but D doesn’t know victim is dead
D doesn’t
ask, but
LEO
assure…
D asks
and LEO
respond…
“Don’t worry, no D had
one’s hurt.”
accidental
discharge
“No one’s hurt
toward
bad.”
deserted
“Don’t worry, no woods &
one’s hurt.”
didn’t see
victim on
“No one’s hurt
path on
bad.”
way home
“Don’t worry
from
about that.”
school
Low Risk
D fired
warning
shot
toward
crowd
intending
to miss &
thinks he
missed
D shot
intending
to wound
victim &
thinks he
wounded
victim
B. Deception During Interrogation
Deception AFTER Rights Waiver
Deception will render confession involuntary
when it is so extreme it could reasonably make
an innocent person confess
• Interrogator deception can misrepresent:
– Past What happened
– Present: Strength of evidence
– Future: Consequences
B. Deception During Interrogation
Deception AFTER Rights Waiver
Facts
Law
Strength of Evidence
Seriousness or Existence of Offense
Likelihood of Consequences
Seriousness of Consequences
Low Risk
Moderate Risk
B. Deception During Interrogation
Deception AFTER Rights Waiver
Deception will render confession involuntary
when it is so extreme it could reasonably make
an innocent person confess
• Interrogator deception can misrepresent:
– Past What happened
– Present: Strength of evidence
– Future: Consequences
• Promises of immunity: Positive reinforcement
• Threats: Negative reinforcement
– Resembles defenses of duress and necessity
B. Deception During Interrogation
Deception AFTER Rights Waiver
Facts
Degree of Coercion
Law
Strength of Evidence
Seriousness or Existence of Offense
Likelihood of Consequences
Seriousness of Consequences
Low Risk
Minimization
Commiseration
High Risk
Promises / Immunity
Threats
B. Deception During Interrogation
Deception AFTER Rights Waiver
Fundamental Fairness
• WHAT is the
MOTIVATING VALUE
the deception is
designed to exploit?
• HOW is the interrogator
exploiting that
MOTIVATING VALUE?
II. The Law and Deception Operations
A.
B.
C.
D.
E.
Entrapment
Deception during Interrogation
Ruse Entries to Search or Arrest
The Undercover LEO
Common Elements
C. Ruse Entries to Search or Arrest
Ruse Entry
Warrant
Knock and
Announce
No Warrant
Arrest
Search
C. Ruse Entries to Search or Arrest
• Entry with warrant authorizing
compromise of REP
– Primary issue: Noncompliance with
knock-and-announce statute
• General resolution: No-knock execution
OK IF:
Reality
– Warrant authorizes OR
Very
trumps
– Circumstances dictate OR
Low
prediction
– Entry gained by ruse
Risk
C. Ruse Entries to Search or Arrest
• NO warrant authorizing
compromise of REP:
– Ruse entry to search
– Ruse entry to arrest
C. Ruse Entries to Search or Arrest
• NO warrant authorizing
compromise of REP:
– Ruse entry to search
Low
Risk
• Posing as criminal visitor
• Posing as non-criminal third party
• Accompanying non-LEO government visitor
Higher on legitimate business
Risk • Posing as non-LEO government visitor
• Pretending to have a search warrant
C. Ruse Entries to Search or Arrest
• NO warrant authorizing
compromise of REP:
– Ruse entry to search
Low– Ruse entry to arrest:
Risk
• Entering arrestee’s premises
High • Entering third party’s premises
Risk
II. The Law and Deception Operations
A.
B.
C.
D.
E.
Entrapment
Deception during Interrogation
Ruse Entries to Search or Arrest
The Undercover LEO
Common Elements
D. The Undercover LEO
• Focus upon what UC does:
– Entrap
– Interrogate
– Enter, search and seize
• Actual identity seldom
an issue
• Chosen role can impact
legal resolution
II. The Law and Deception Operations
A.
B.
C.
D.
E.
Entrapment
Deception during Interrogation
Ruse Entries to Search or Arrest
The Undercover LEO
Common Elements
E. Common Elements
• Legality turns on totality of circumstances and
is determined case-by-case
• Factors deemed relevant by judges also affect
juries and communities
Totality of
• Examples
Circumstances
– Targeted crime or criminal is
WORTHWHILE TARGET
– Deception is NECESSARY because other
enforcement alternatives are markedly less
likely to succeed
E. Common Elements
• Legality influenced by due process and
fundamental fairness considerations
• Examples:
– Misrepresentations do NOT encroach upon:
• Trial judge rulings on admissibility
• Prosecutorial discretion
Due Process
– Misrepresentations do not
and
facilitate UNDUE COERCION
Fundamental
– Deception MOTIVATES target
Fairness
in UNSYMPATHETIC way
III. Beyond Bare Legal Compliance
A.
B.
Adding Elegance to the Design
Adding Jury Appeal and Avoiding
Jury Nullification
C. Maximizing Sentence
D. Anticipating Appeal
E. Enhancing Community Relations
III. Beyond Bare Legal Compliance
A. Adding Elegance to the Design
B. Adding Jury Appeal and Avoiding
Jury Nullification
C. Maximizing Sentence
D. Anticipating Appeal
E. Enhancing Community Relations
A. Adding Elegance to the Design
• Nailing the Elements
– Elements checklist:
• Mens rea
• Circumstances
• Actus reus
– Corroborating
weaknesses
• Admissibility
• Credibility
A. Adding Elegance to the Design
• Connecting the Dots
 Crime 

– Crime
• Lesser-included offenses
• Kindred crimes
• Pre-empting defenses
– Criminals
•
•
•
•
• Co-conspirators
• Accessories
•
•
•
•
•
•
A. Adding Elegance to the Design
• Right-sizing Consequences
– Right crime
• If we just can prove…
– Right criminal
• Criminal customers vs.
criminal suppliers
• Little fish vs. big fish
• Dabblers in crime vs.
criminal multi-taskers

Crime
.
III. Beyond Bare Legal Compliance
A. Adding Elegance to the Design
B. Adding Jury Appeal and Avoiding
Jury Nullification
C. Maximizing Sentence
D. Anticipating Appeal
E. Enhancing Community Relations
B. Adding Jury Appeal and Avoiding
Jury Nullification
•
From a juror’s perspective, are we
targeting the right crime?
1. This crime is harmful
2. This crime is big
•
•
•
Large-scale,
Pervasive
Otherwise aggravated?
3. This crime is being committed more often
B. Adding Jury Appeal and Avoiding
Jury Nullification
•
From a juror’s perspective, are we
targeting the right crime?
4. Realistically, there are no effective
enforcement alternatives to reduce the
incidence of this particular crime or
convict this particular criminal.
B. Adding Jury Appeal and Avoiding
Jury Nullification
• From a juror’s perspective, are we
targeting the right criminals?
– Criminal otherwise dangerous to
community?
• Minor crime to catch
major criminal?
• Minor crime to catch
law-abiding citizen to
improve enforcement statistics?
B. Adding Jury Appeal and Avoiding
Jury Nullification
Fundamental Fairness
• WHAT is the
MOTIVATING VALUE
the deception is
designed to exploit?
• HOW is the investigator
exploiting that
MOTIVATING VALUE?
B. Adding Jury Appeal and Avoiding
Jury Nullification
Fundamental Fairness
• WHAT is the
MOTIVATING VALUE
the deception is
designed to exploit?
• Some motivating values
engender jury sympathy
• Suspect trying to protect others more sympathetic than if acting
only out of self-interest
B. Adding Jury Appeal and Avoiding
Jury Nullification
Motivating Value
Ethics or Conscience
Religion
Family Honor
Status or Reputation
Punitive Consequences
Money
Higher
Risk
Self
Low Risk
Others
Higher Risk
B. Adding Jury Appeal and Avoiding
Jury Nullification
Fundamental Fairness
• Be a little wary of
appealing to group
loyalty to sympathetic
groups:
Religion or veteran
vs.
Street gang or
Aryan Brotherhood
• HOW is the
investigator exploiting
that MOTIVATING
VALUE?
B. Adding Jury Appeal and Avoiding
Jury Nullification
Fundamental Fairness
• Be more wary of
falsely affiliating with
suspect’s membership
in sympathetic groups:
– Religion
– Veteran
• HOW is the
investigator exploiting
that MOTIVATING
VALUE?
B. Adding Jury Appeal and Avoiding
Jury Nullification
Observations Specific to Interrogation
• Qualitative –
• HOW is the
Unsympathetic motives
interrogator exploiting
& affiliations
that MOTIVATING
• Timing – Deception is
VALUE?
NECESSARY because
• Quantitative – Sparing
of repeated lies or
use to avoid excessive
evasions
jury identification
III. Beyond Bare Legal Compliance
A.
B.
Adding Elegance to the Design
Adding Jury Appeal and Avoiding
Jury Nullification
C. Maximizing Sentence
D. Anticipating Appeal
E. Enhancing Community Relations
C. Maximizing Sentence
– Statutory Aggravating Factors
– Sentencing Guidelines
• Offense conduct
• Adjustments
– Victim impact
– Role in offense
• Departures
– Aggravation
– Mitigation
– Common-sense aggravation
III. Beyond Bare Legal Compliance
A.
B.
Adding Elegance to the Design
Adding Jury Appeal and Avoiding
Jury Nullification
C. Maximizing Sentence
D. Anticipating Appeal
E. Enhancing Community Relations
D. Anticipating Appeal
• Issue du jour
• Issue du demain
• Corroborating the proof
III. Beyond Bare Legal Compliance
A.
B.
Adding Elegance to the Design
Adding Jury Appeal and Avoiding
Jury Nullification
C. Maximizing Sentence
D. Anticipating Appeal
E. Enhancing Community Relations
E. Enhancing Community Relations
• Departmental public affairs
officer in loop
– OPSEC concerns
– Publicized veiled warning
– Post-operation publicity
• Maintaining public trust in law enforcement
agencies, operations and personnel
E. Enhancing Community Relations
• Entrapment:
– May lower community trust & department reputation
– May look like targeting & disparate impact
– May pose ancillary risks
• Deception during interrogation:
– Widespread deception may lead to reduced waivers
by suspects and informant cooperation
• Ruse Entries
– Can endanger or reduce efficiency of other
agencies, etc.
Conclusion
?
Fruit of the Poisonous Tree:
Missouri v. Seibert (S.Ct. 28 June 2004)
• Facts:
– Patrice’s 12-year-old son, Jonathan, had
cerebral palsy and died in his sleep
– Fearing neglect charges because Jonathan had
bed sores, Patrice’s 2 teenage sons and 2 of
their friends decided to burn the trailer
– Patrice was present when they decided to leave
Donald, a mentally ill teenager living with the
family, in the trailer when they set it afire to
avoid charges of neglect
Fruit of the Poisonous Tree:
Missouri v. Seibert (S.Ct. 28 June 2004)
• Facts:
– Darian and a friend set the fire, and Donald died
– Five days later, Rolla police picked up Patrice at
the hospital [Darian had been burned] at 3 am
and took her to Detective Hanrahan
Fruit of the Poisonous Tree:
Missouri v. Seibert (S.Ct. 28 June 2004)
• Facts:
– Patrice is left alone for 15-20 minutes
– Detective Hanrahan questions her without
warnings for 30-40 minutes
• Detective Hanrahan squeezes Patrice’s arm
repeatedly while saying, “Donald was also to
die in his sleep.”
– Patrice implicates herself
Fruit of the Poisonous Tree:
Missouri v. Seibert (S.Ct. 28 June 2004)
• Facts:
– Patrice given 20-minute coffee and cigarette
break
– Hanrahan returns, turns on tape and gives
Miranda warning
– Patrice repeats admission
Fruit of the Poisonous Tree:
Missouri v. Seibert (S.Ct. 28 June 2004)
• Facts:
– Hanrahan testifies that “he made a ‘conscious
decision’ to withhold Miranda warnings, thus
resorting to an interrogation technique he had
been taught: question first, then give the
warnings, and then repeat the question ‘until I get
the answer that she’s already provided once.’”
– Initial, unwarned admission suppressed, but later,
warned admission admitted
– Patrice convicted of second-degree murder
Fruit of the Poisonous Tree:
Missouri v. Seibert (S.Ct. 28 June 2004)
• Issue:
– ¿Does the question-first technique violate the
constitutional character of the Miranda warning
requirement sufficiently to require suppression of
both admissions?
• Held [5-4]: Yes
• Rationale:
– “The manifest object of question-first is to get a
confession the suspect would not make if the
suspect understood his rights at the outset.”
Fruit of the Poisonous Tree:
Missouri v. Seibert (S.Ct. 28 June 2004)
• Distinguishing Elstad:
– Completeness and details of questions and
answers in the first round of questioning
– Degree to which the two statements overlap
– Timing and setting of first and second rounds
– Continuity of interrogators Seibert: Deliberate
vs.
– Degree to which second
Elstad: Mistake
round interrogator treated
the second round as a
Cleansing warning
continuation of the first round