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Bad Cop, uh...Bad Cop

In the old days, there used to be an interrogation technique called “Good Cop/Bad Cop.” These days, the technique has fallen somewhat out of favor. In its place, we have “Bad Cop/Not So Bad Cop.”

Or increasingly, just Bad Cop.

Not All Cops Are Bad

At least a few readers will be up in arms over this post — particularly that last sentence. To them, let me say this: I make no apologies. As Scott Greenfield, a New York criminal defense lawyer said earlier today,

For those who are tired of hearing these negative stories about police officers, and assert that mere mortals like us can never understand the pressures of the brotherhood of self-proclaimed heroes, we need to persist nonetheless. If we don’t keep this issue on the front burner, and if we don’t let cops know that we’re well aware of the fact that they are shameless liars when it suits them, it won’t end. We just keep pounding away.

And as I’ve repeatedly pointed out in other posts, the fact that there are bad cops and that criminal defense lawyers try to bring that to the attention of the general public, so as to help encourage the bad guys to clean up their acts, does not mean that I think — or that anyone else engaged in this task thinks —all cops are bad. We don’t think that and they aren’t. Many — possibly even the majority — of law enforcement officers are actually good guys. Heck, I even think some of those who do bad things are good guys. After all, everyone makes mistakes. And in the heat of the moment, or on the stand when they fear the case may fall apart if they answer me truthfully, I can’t even imagine how great the temptation must be.

But the fact of the matter is that law enforcement ranks have more than their fair share of people who have forgotten the point of the power they wield. Their job is to protect and to serve the public and to protect and to serve the public in a particular way.

Bias Is An Occupational Hazard

Far too often all these points are forgotten. Law enforcement officers can easily get caught up — as can we all, if we are not careful — overwhelmed by ennui from seeing so many bad things, so that everyone they encounter becomes, in some ways, a suspect. And when I say that we are all susceptible of this, I mean it. Sometimes, when spotting a police officer on the road while driving home, I have to check myself, to remind myself that I did not just spot a threat. Because a world with no police officers would be an ugly world, indeed.

But don’t think that shoe doesn’t fit as well on an officer’s foot, either. Let me give you an example. I’m not going to go into any details here — I will only say that it did not happen within the city of Fresno. Last night, a colleague of mine and I were working late together researching, discussing and writing motions. A call came in from someone in an outlying community. Law enforcement officers were at the home, not for the first time aggressively questioning the individual. The individual had been answering questions, but after becoming uncomfortable with the direction things seemed to be going, decided to call for advice, apparently while the police were taking a look around the property, before continuing.

What to do?

You Have the Right to Remain Silent: Use It!

Visitors to the main page of my main law practice site will have noticed a link about the first and most important thing to remember when being questioned by the police. Any of them following the link could have viewed a 21-minute video of a police officer explaining why talking to the police is a bad idea. Once the police focus in on you, there really is nothing you can do to help yourself. And those aren’t just the words of Rick Horowitz, Fresno criminal defense attorney; those are the words of Officer George Bruch of the Virginia Beach Police Department speaking to a group of law students.

So naturally, my colleague and I endeavored to explain to the individual with whom we spoke that talking to the police was not in that individual’s best interests.

Suddenly, in the background, came a voice: “Who are you talking to?” After the individual answered, the words, “A lawyer! You don’t want to get a lawyer involved in this.”

For obvious reasons, I’m being vague — not even providing the gender of the individual involved — but the point is that this scenario plays itself out every day in cities all over America, if not the world. But in America, unless you’ve been classified as an enemy combatant, individuals are entitled to consult with counsel before talking to the authorities.

The reason isn’t “to allow criminals to go free,” either. Police officers sometimes target the wrong people. That seems to be the case with the individual discussed above. And that individual is scared. Never having been accused of, or convicted of, any significant crime in that individual’s life, the individual doesn’t know what to say, or how to act, to convince the officer he is innocent of the crime law enforcement currently believes the individual has committed.

And there is no way to do that. The cops involved already believe the individual is guilty.

So what’s this got to do with bad cops, anyway? It will take a minute to explain this and I need to take a little detour, so bear with me.

Cops Aren’t Good Judges of Deception Versus Honesty

A study published in 2005 showed results which “have serious implications for the interrogation of innocent suspects and the judgments of their confessions to police investigators.”

Since confession evidence has the potential to be highly influential in court cases, the ability to distinguish between true and false confessions has become a crucial aspect of a police investigator’s job. This is especially important given recent research by Kassin and Fong (1999) indicating that police investigators who are trained to detect deception cues are actually less accurate, yet more confident, when distinguishing between truthful and deceptive statements than the average person. (Kristine Fitzgerald, “The ability of police investigators to detect false confessions” (Spring 2006) Canadian Journal of Police and Security Services.)

The study and other articles I read on the subject speculate that one reason police investigators did worse than average people is the development of an investigator response bias.

Research suggests that the process of interrogation is persuasive, if not too persuasive, in part because it is explicitly based upon a presumption of guilt—an assumption that itself can set in motion a number of cognitive and behavioral confirmation biases. (Christian A. Meissner and Saul M. Kassin, “‘He’s Guilty!’: Investigator Bias in Judgments of Truth and Deception” (2002) Law and Human Behavior, vol. 26, no. 5, p. 469.)

In other words,

Our effect size analysis of the existing literature yielded an investigator bias effect, suggesting that training and prior experience lead to a perceptual bias toward judgments of deceit. (Christian A. Meissner and Saul M. Kassin, “‘He’s Guilty!’: Investigator Bias in Judgments of Truth and Deception” (2002) Law and Human Behavior, vol. 26, no. 5, p. 473. (Emphasis added.))

Ironically, while police interrogators turn out to be more biased and worse than non-police-interrogators at detecting truth versus deception, they also are more confident in their ability to make accurate judgments. (Fitzgerald, supra.)

Good Cops Honor the Constitution

So again, what does this have to do with bad cops? The thing is, I have experience with this particular cop. I’ve talked to him. At least one of my readers should enjoy hearing that, yes, I have met him. And this particular cop epitomizes the attitude discussed in the studies mentioned above.

But even if I didn’t know him, even if I hadn’t met him, even if I didn’t already mistrust his ability to be truthful, the studies above point up a justification for not trusting police officers who attempt to keep accused persons away from talking to lawyers.

The United States Constitution recognizes the right to remain silent. Again, it doesn’t do this because our Founders thought that letting criminals go free was a good thing. Unlike us, however, they understood the ways in which the power of the government could be used to coerce an individual to “provide” unreliable information that could be hurtful to him. They understood that this happens more often when government agents use their power to force someone to talk.

So, with apologies to my readers who think I’m being unfair, a cop who tries to interfere with a conversation an accused person is trying to have an attorney is…uh…a Bad Cop.

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