Monday, January 26, 2015

Regent Law Professor James Duane’s lecture “Don’t Talk To The Police,” outlining why citizens should always exercise their 5th Amendment right to remain silent when questioned by government agents can found here. The proscription in the title or this post is slightly more limited (federal agents) and based not on the Constitution, but on a particular federal statute: 18 USC § 1001.

In New York, for example, the police are permitted to lie to you (“we got your fingerprints on the murder weapon,” “we've got a video of you leaving the 7-11,” “your codefendant is saying it was all you, he didn’t do anything,”) in order to get you to tell the truth, so long as the deception is not so fundamentally unfair as to violate due process by provoking an unreliable confession (People v Hall, 152 AD2d 948 [4th Dept 1989]; People v Tankleff, 199 AD2d 550 [2nd Dept 1993]). 

The fallacy that courts are able to reliably determine where that line is, as shown by the conviction of Mr. Tankleff and other defendants who were coerced into falsely confessing by police use of deception and later exonerated, will be examined in a future post.  

The irony aside, deceiving suspects has been shown to be an effective technique for obtaining both truthful and false confessions (and, as Mr. Tankleff’s case and other wrongful conviction cases demonstrate, juries often can’t tell the difference).  Thus, given the present state of the law, criminal investigators can and do regularly lie to suspects to obtain what are later argued to be truthful confessions or admissions. 

In the case of dealing with federal agents, however, what’s good for the goose will get the gander indicted.  Title 18 USC § 1001 provides, in relevant part, that: 

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully--

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or representation; or

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism . . . , imprisoned not more than 8 years, or both.

The act goes on to denote other “special” lies worthy of 8 rather than 5 years, which is just for garden-variety lies. What constitutes a “matter” under this section? A criminal investigation counts (see, United States v Rodgers, 466 US 475 [1984]).  While you might argue that a preliminary investigation is not a “matter,” (see, e.g., United States v Pickett, 353 F3d 62 [D.C. Cir 2004]), whether it was or wasn't a “matter” is probably an argument best avoided altogether.

In short, when a government agent questions a citizen, the citizen may decline to answer the question or answer it honestly but he cannot with impunity knowingly and willfully answer with a falsehood (Bryson v United States, 396 US 64 [1969]).  Who decides whether the citizen’s answer constituted a willful falsehood?  Initially, of course, the government agent that thinks he or she has been lied to and ultimately, maybe, a jury.  This offense is a separately prosecutable charge from the criminal matter being investigated, even if that investigation turns up no criminality.  So, when being questioned by federal law enforcement agents, one might wish to consider that: 

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