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Chief's Counsel

Strategic Deception Revisited: The Use of Fabricated Documents during Interrogation—Permissible Ploy or Prohibited Practice?

By David C. Mount, Special Agent in Charge, Office of Chief Counsel, U.S. Secret Service

aw enforcement officials understand that service in their profession requires character and values and not simply technical proficiency. One of these values is honesty, which requires an officer to avoid such behaviors as lying for personal gain or during judicial proceedings. However, the U.S. Supreme Court has recognized that the duties of law enforcement may require limited officially sanctioned deception in the course of a criminal investigation.1

The Court has referred to these officially sanctioned contrivances in general as “strategic deception.”2 The use of strategic deception by way of oral misrepresentation during interrogation is a police practice that the Court has permitted within limitations. The controversial question that has arisen in the appellate courts concerns whether fabricated documents containing falsehoods may lawfully be used during interrogation to encourage confessions.

The U.S. Supreme Court Considers Deception during Interrogation

In the late 1960s the U.S. Supreme Court confronted the question of police deception during interrogation. In Frazier v. Cupp,3 the defendant was arrested and interrogated regarding a murder. During this interrogation, Frazier denied being with the victim on the night of the murder but stated that he was with his cousin, Rawls. Frazier was then falsely advised that Rawls had confessed. Shortly thereafter, Frazier confessed. The Court held that while police misrepresentation is relevant to the issue of voluntariness, it is “insufficient . . . to make this otherwise voluntary confession inadmissible.” The Court added that the appropriate standard is an examination of the “totality of the circumstances.”4

The Appellate Courts Split on the Use of Fabricated Documents

Although the Supreme Court had already ruled on oral misrepresentation in interrogation, in the 1980s and 1990s the matter of the use of fabricated documents for interrogation purposes led appellate courts to a split opinion.

In State v. Cayward,5 a Florida appellate court considered the sexual assault and murder of a five-year-old girl. The girl’s uncle, Paul Cayward, became the focus of the investigation, but after a number of interviews the police did not believe that they had a prosecutable case. The police then decided, with the knowledge of the prosecutor, to create false documents to aid them in their next interview of Cayward: one letter each from a state agency and a private laboratory, on official letterhead, both reporting that semen stains on the victim’s underwear were from Cayward. During interrogation he was shown the false documents, which were offered as genuine. At the end of the interview, he confessed.6

The appellate court upheld the suppression of the confession by the trial court. In doing so, it first agreed that although police deception is a factor that affects voluntariness, it “does not render a confession involuntary per se.” Nonetheless, the court found “a qualitative difference” between oral deceptions and the exhibition of fabricated scientific documents or physical or tangible evidence, which “has no place in our criminal justice system” and for which the court felt a “spontaneous distaste.” Therefore, the court found the fabricated documents to be a per se violation of due process.7

In addition, the court cited “practical concerns” about “the potential of indefinite life and the facial . . . authenticity” of documents, stating that “opening the door for police to fabricate court documents” would “greatly lessen the respect the public has for the criminal justice system and for those sworn to uphold and enforce the law.”8

The court offered a warning that busy departments and large caseloads combined with long periods between investigation and trial, personnel changes, lapses of memory, and multiple copies of reports filed in various places under different filing systems might result in the disclosure of fabricated documents to the media or their admission as substantive evidence of the crime against the defendant. Furthermore, efforts to mark all copies false or destroy them may prove ineffective.10

In contrast, in 1996, the Supreme Court of Nevada considered a confession to sexual assault in Sheriff v. Bessey.11 Bessey initially denied any sexual contact with the 14-year-old victim. He was then confronted with a fabricated crime lab report showing that his semen was recovered from a sofa in his apartment on which the alleged contact had occurred. In fact, “the actual analysis was negative.”12 The court upheld the confession viewing “the totality of the circumstances,” noting that the falsehood was intrinsic to the strength of the evidence in the case, which would lead the suspect only to consider his own innocence or guilt, and was not the type of deception that might lead an innocent person to confess.13

The Bessey court also acknowledged that “false documents may go astray” but expressed confidence that the rules of evidence will prevent their improper use.14 The court concluded that fabrication of certain official documents might undermine public confidence and be impermissible, but “the rather innocuous document used” in this case did not include that “bogeyman.”15

In State v. Patton16 the court invoked a per se prohibition on the use of fabricated documents used to induce confessions. The police in Patton used an audiotape created by a detective that contained a fabricated interview of an eyewitness to a homicide that incriminated Patton.17

Most recently, in 2005, the Maryland Court of Special Appeals considered a homicide admission in Lincoln v. State.18 The admission was preceded by showing Leroy Lincoln, son of the deceased, several photos. The photos were of Lincoln, his mother, and another individual, John Ulrich, who were believed to be involved. On the back of the photos the detective had written statements implicating Lincoln, his mother, or Ulrich, but Lincoln was told these handwritten statements were from others. After seeing the photos Lincoln continued to deny involvement.

The detective then played for Lincoln a portion of a taped interview with his mother. Nothing in the played portion implicated Lincoln. The detective then stated that the mother had confessed and had named both Lincoln and Ulrich. At that point, Lincoln admitted that he was present during the homicide.

The Maryland court upheld the confession under the “totality of the circumstances” approach. The Court also rejected a per se rule, noting that fabricated documents may range from “seemingly official” to “amateurish” and, therefore, should not be “treated identically.”19

Recommendations and Conclusion

A review of the issues discussed above reveals a lack of uniform analysis from the lower courts regarding the use of fabricated documents during interrogation. Furthermore, the U.S. Supreme Court has yet to rule on this precise issue. Therefore, any choice to use fabricated documents during interrogation should be made only after a full consideration of the legal issues involved. In addition, any decision to proceed should include sound operational planning that minimizes legal or practical concerns, e.g., document content that raises admissibility problems or documents that lack proper post-use marking, segregation, or other adequate control, along with full disclosure of their existence in appropriate reports.

This column discusses the effect of the U.S. Constitution as interpreted by the U.S. Supreme Court and selected appellate courts on law enforcement practices. Law enforcement professionals should consult their agency counsel for the potential impact of their state constitution, statutes, case law, or regulations as well as department policy on police practices in their jurisdiction.■

Author’s note: Any analysis, opinions, or recommendations in this column are exclusively those of the author and do not represent those of the U.S. Secret Service or the Department of Homeland Security.

This column is a service of the IACP Legal Officers Section, which is composed of police legal advisors who are members of the IACP and the section. The opinions expressed and positions taken are those of the column’s author and do not necessarily represent the views of the IACP, The Police Chief, or even the Legal Officers Section. Attorneys who wish to submit articles for possible use in this column or anyone wishing to join the Legal Officers Section should contact Randy Means at


1United States v. Russell, 411 U.S. 423, 434 (1973) (citation omitted) (“Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer”).
2See, for example, Illinois v. Perkins, 496 U.S. 292, 297 (1990) (“Miranda forbids coercion, not mere strategic deception . . .”).
3Frazier v. Cupp, 394 U.S. 731 (1969).
4Id. at 737–739 (citation omitted).
5State v. Cayward, 552 So.2d 971 (Fla. Dist. Ct. App. 1989) review dismissed, 562 So.2d 347 (Fla. 1990).
6Id. at 972.
7Id. at 973–974. See also State v. Farley, 452 S.E.2d 50, 60 n.13 (W. Va. 1994): citing Cayward with approval, the court opined in dicta that otherwise permissible false verbal assertions, e.g., unfavorable polygraph results, may become impermissible if specific and reduced to a written report that is shared with the subject. Compare South Carolina v. Von Dohlen, 471 S.E.2d 689, 694 (S.C. 1996) cert. denied, 519 U.S. 972 (1996): a confession was admitted after the subject was shown a sketch purportedly from a witness but actually drawn by a police artist through one-way glass, although the court termed police misrepresentation of evidence “a deplorable practice.”
8552 So.2d at 974–975.
9Id. at 975 (the court concerned itself with self-authenticating documents).
10Id. at 974–975, but compare Arthur v. Commonwealth, 480 S.E.2d 749, 751 (Va. Ct. App. 1997): a confession was allowed after false reports on fingerprint evidence and on the subject’s hair being found in the victim’s blood were shown to the subject. The court acknowledged that false documents were filed separately from genuine documents and laboratory reports.
11Sheriff v. Bessey, 914 P.2d 618 (Nev. 1996).
12Id. at 619.
13Id. at 619–622.
14Id. at 621–622, but see id. at 623–624 (Rose, J., dissenting), discussing the curious case of United States v. Khoury, 901 F.2d 948, 969–971 (11th Cir. 1990) modified, 910 F.2d 713 (11th Cir. 1990): a stray document in Khoury surfaced during discovery in a separate case. The government asserted in chambers ex parte that the fabricated document that contained false potential Brady material had been created as bait in a leak investigation during the Khoury case.
15914 P.2d at 621.
16State v. Patton, 826 A.2d 783 (N.J. Super. Ct. App. Div. 2003) certif. denied, 834 A.2d 408 (N.J. 2003).
17826 A.2d at 798–799 (the court also condemned fabricated documents that include true or partially true information, which may include hearsay or prior bad acts that create admissibility problems under the rules of evidence for which a limiting instruction is inadequate).
18Lincoln v. State, 882 A.2d 944 (Md. Ct. Spec. App. 2005) cert. denied, 888 A.2d 342 (Md. 2005).
19882 A.2d at 956–957.



From The Police Chief, vol. 74, no. 6, June 2007. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.

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