![]() ![]() And the key to evaluating noncoercive police deception is materiality, an element of fraud across many different contexts. The problem with most police deception is not that it is potentially coercive but that it is potentially fraudulent. Police deception is truly coercive only where, if the false information were true, the suspect would be deprived of the ability to make a fair choice, as where the police point an unloaded gun at the suspect’s head. Thus, most police deception is noncoercive. Police deception manipulates that choice by altering the perceived costs and benefits of standing by the right to remain silent, but it does so within a framework in which the suspect exercises free will. When police lie about the strength of the evidence against the suspect or falsely promise leniency, the suspect still exercises free will to weigh the costs and the benefits of standing by the right to remain silent and to make a reasoned choice between exercising or forgoing that right. During interrogation, the suspect’s reaction to questioning can be seen as a continuous set of decisions on her part as to whether exercise or forgo the right to remain silent. Thus, police deception is rarely coercive in the true sense of the word. That is to say, while the person under duress is not acting of her own free will, the deceived person is exercising her free will to make a choice that is apparently, but not actually, in her best interests. Deception alters the actor’s perception of her choices so that, while she perceives herself to be making a rational choice of the more attractive alternative, a rational actor would have decided differently if she were aware of the true facts. Coercion is generally thought of as depriving the actor of free will or, to put it more helpfully, putting the actor to an unfair choice of undesirable alternatives. In other areas, the law distinguishes between coercion and deception. Nor have they been able to prescribe how far the police may go with respect to other types of deception, such as misrepresentation of facts extraneous to the interrogation room, before they cross the line. Yet neither courts nor commentators have successfully articulated why exactly the line is drawn where it is. But when police engage in other forms of deception, such as by offering false promises of leniency or misrepresenting the suspect’s Miranda rights, courts will balk and declare the resulting confession coerced. Police are permitted, for example, to feign sympathy for the suspect, lie about the existence of incriminating evidence, and falsely downplay the seriousness of the offense under investigation. Police may deceive in order to induce a suspect to confess, the courts tell us, unless they go too far. Judge Mershon ruled that the agreement was signed under duress, and was therefore null and void.The jurisprudence on the use of police deception during interrogations is singularly unhelpful.Williams said he agreed to the new settlement under duress.The confession had been obtained under duress, and therefore could not be allowed as evidence.The defendants claimed that their confessions were made under duress.In her defence, the accused said that she had been acting under duress when she took the money.Under duress it may flee and hide, but it can only do this occasionally. ![]()
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