The police can either lie to Jane or they can be honest with her. If the police lie to Jane, it is probable that they will receive a crucial piece of information. If the police act honestly, they are unlikely to receive the information. What should the police do?
Perhaps this sounds like an easy question. If we care about security and law enforcement, surely the police should be able to rely on deception and dishonesty. How else would they do their job? It seems difficult to imagine a world in which the police are required to shoot straight with conniving criminals.
Of course, the question is not so easy if we are concerned about things such as fraud, consent, voluntariness, the rule of law, and trust. If the police can do anything to obtain a confession (beat a suspect, for example), then there is a good chance the suspect’s confession won’t be voluntary.
One might object that force shifts the discussion from deception and dishonesty to brutality. However, concerns regarding political morality are relevant in both cases, force and fraud. Similar to how a confession elicited through physical abuse is unjustified, it is reasonable to think some confessions elicited through material misrepresentation of fact or law should be unjustified.
Suppose the police tell Jane she has two choices: Confess and face two years in prison or don’t confess and face forty years in prison after trial. If Jane confesses based on this information, and the information is a material misrepresentation of the facts or the law (e.g., she’s facing only three years regardless of whether she confesses), then the police defrauded Jane of her right to remain silent, among other things—or at least that’s the position I stake out in my book on police deception and dishonesty.
One of position’s motivating ideas is that justified police institutions have a normative foundation steeped in values such as good faith, honesty, and transparency. The question thus becomes (assuming you’re not an absolutist who would tell the truth to a murderer at the door who is looking for a victim hiding in your house), when may the police deviate from this normative foundation by engaging in a deliberate dishonest disposition?
Routine instances of deception and dishonesty would be impossible (and unnecessary) to prohibit. Imagine trying to require all police officers to be genuinely (non-deceptively) empathic, instead of feigning concern for a suspect’s wellbeing to encourage the suspect to talk. On the other hand, it is reasonable to think the police should be restricted from more serious cases of deception and dishonesty, namely, those that are on par with fraud.
Even if there is no concrete legal action for fraud against the police, the broad normative elements of the concept of fraud are instructive here. In short, if the police use deception and dishonesty regarding a material matter to gain an unjust (more below) advantage over a person in a way that harms the person’s rights and interests, then it’s plausible to think we’re in the ballpark of fraud.
The Central Park Five case is a notorious example: A young woman, who had been jogging in Manhattan’s Central Park, was found near death in one of the park’s wooded ravines in 1989. The woman had been brutally beaten and raped but could not remember the attack when she was able to communicate weeks later. However, five teenagers confessed to the police in the days after the crime. The boys (aged fourteen through sixteen) had been in the park with a larger group of young people who had been harassing other park-goers.
By the time the teenagers had given confessions, they had been in custody and interrogated sporadically for fourteen to thirty hours. They were individually told that the others had implicated them in the crime. The U.S. Supreme Court (in Frazier v. Cupp, 394 U.S. 734 [1969]) had long before condoned this sort of dishonesty, which helped pave the way for tactics used against the Central Park Five.
The police in the Central Park Five case also claimed to have physical evidence, including fingerprints, that could link the teenagers to the crime. When one of the teenagers denied being in the park on the night of the crime, a detective said he knew the teen was there—because the police found fingerprints on the victim’s underwear. This was a blatant lie; there were no fingerprints at all. But upon hearing of the supposedly damning evidence, the teenager changed his story and said he took part in the attack on the woman. Ultimately, all five teenagers were convicted and incarcerated.
Eventually, it became clear from both the original and new evidence that the attack had not been a gang rape but was rather perpetrated by a serial criminal acting alone. The intense focus on the five teenagers meant that the true criminal—Matias Reyes, who was on a rape, assault, and murder spree—was left on the streets. In 2002, while serving time for other crimes, Reyes confessed that he alone bludgeoned and raped the jogger; his was the only DNA recovered. The Central Park Five convictions were vacated.
Assuming interrogation does not involve force, it might seem odd for a person to confess to a crime they did not commit, but such confessions are all too common when a person (especially a young one) is subjected to an hours-long interrogation that includes deception and dishonesty, including (false) promises. Given an extreme power imbalance, it can indeed seem rational for innocent people to confess or plead guilty.
By falsely telling a person that they can go home if they confess (a material misrepresentation of fact) or that they won’t face a particular charge if they confess (a material misrepresentation of law), the police have defrauded the person when their rights and interests are harmed (such as the right to remain silent, along with any harm resulting from a confession) by the misrepresentation. The police’s actions are fraudulent (and “unjust”) in part because they affect the person’s ability to truly act voluntarily under the circumstances (notwithstanding legal doctrine that permits such dishonesty).
Still, there are cases in which it is plausible to think principles of political morality should be prioritized over fraud. In the same way we don’t require the police to obtain an arrest warrant when they observe someone in the act of committing a violent crime, it is reasonable to think the police may use fraud in similar emergency situations.
Consider an active kidnapping case in which the police interrogate someone who might know the suspect’s identity or location. Or a case involving the welfare of a child. Or simply one in which an officer needs to seize a person (which will necessarily involve some force, perhaps even deadly force). If force is justified, then it is plausible to think that lying to the suspect to facilitate the arrest would also be justified—even if it amounts to fraud. These sorts of cases are essentially “murderer at the door” situations in which fraudulent behavior prevents serious bodily harm or death.
The police role includes a vast amount of discretionary power to engage in deception and dishonesty. In other words, the police use their prerogative power to make normative judgments about practical matters. Discretionary prerogative power is certainly consistent with the rule of law. The difficulty is reining in such a nebulous power so that it doesn’t pervert the law. To do so, it helps to consider three contexts for any normative framework regarding the role of deception and dishonesty on par with fraud: institutional, substantive, and philosophical.
From an institutional point of view, discretion is necessary for executive agencies such as the police. Imagine a society in which the police must ticket every speeder or every jaywalker. Such a legalistic society would undermine justice. It would also be impossible for inherently slow-moving legislative bodies to micromanage the police’s rapidly developing need for discretion. On the other hand, it is certainly appropriate to limit the outer bounds of police prerogative power to engage in deception and dishonesty on par with fraud. For example, it seems reasonable for the legislature to broadly limit or remove the police’s power to lie to minors.
From a substantive point of view, deception and dishonesty on par with fraud should be constrained to cases in the public interest in which the fraud is necessary to address an emergency threat of harm, such as those noted earlier. We can compare such cases to the police’s widespread use of deception and dishonesty in nonemergency situations, such as the “war on drugs.” Fraudulently interrogating a person to find the location of a kidnapping victim is one thing; using proactive fraud to arrest drug users is another. This distinction is supported by an analogous legal doctrine regarding public safety.
From a philosophical point of view, it stands to reason that—whatever the emergency—the police ought not be permitted to engage in fraudulent tactics that are an affront to one’s personhood. This could simply mean a prohibition of the use of a fraud that would involve degrading one’s human dignity—treating someone as if they have less worth or a lower status than others. If we don’t prioritize political and moral conceptions of personhood and human dignity, then we undercut one of the foundations for pursuing the rule of law in the first place. I’ve argued that personhood should be a priority rule in nonideal theorizing about the police.
The broader point is that by considering institutional, substantive, and philosophical contexts, we can get a better handle on the connections between on the one hand, police deception and dishonesty and, on the other hand, political values such as good faith, trust, and the rule of law. Deviating from these values should require meeting a high bar, considering that legitimacy and governance by law are inconsistent with fraud.
On a more intimate level, the police’s pervasive use of proactive fraud in non-emergency situations can result in profound miscarriages of justice. It is far from clear that these concerns are outweighed by the admirable goal of enforcing the law.
Luke William Hunt
Luke William Hunt is Associate Professor of Philosophy at the University of Alabama, where he teaches in the department's jurisprudence track. After graduating from law school, he was a law clerk for a federal judge in Virginia. He then worked as an FBI special agent in Virginia and Washington, D.C., after which he pursued doctoral work in philosophy at the University of Virginia. He is the author of The Retrieval of Liberalism in Policing (Oxford, 2019), The Police Identity Crisis: Hero, Warrior, Guardian, Algorithm (Routledge, 2021), and Police Deception and Dishonesty: The Logic of Lying (Oxford, 2024).
