Police lying to Virginia criminal suspects does not entitle lying back to cops, says Fairfax criminal lawyer

Police lying — so long as the lie is not a false promise of leniency to the suspect — is generally allowed by the courts for extracting a confession from a criminal defendant. As a Fairfax criminal lawyer, I say that when the police lie in the interrogation room, that can bring into question whether they are telling the truth on the witness stand. That same hand they use to swear to tell the truth in court is the same hand they raised to take their oath as a police officer. As Khaled Hosseini aptly reminds us in The Kite Runner, “When you tell a lie, you steal someone’s right to the truth.”

Why does Virginia criminal law allow police lying to me, but make it jailable for me to lie to police?

Virginia criminal law makes it jailable to make certain false statements to police. See, e.g., Virginia Code § 18.2-461. Federal law is even broader than that, and is how Martha Stewart got convicted and imprisoned (albeit at a very low security prison), not for a securities crime but for lying to law enforcement about her involvement with a securities transaction. Then why does police lying to extract a confession get a green light from the courts? Because over fifty years ago, one of the most otherwise civil liberties friendly justices — Thurgood Marshall — confirmed that police deception, by itself, to obtain a suspects’ confession, does not invalidate the admission of the confession into evidence. Frazier v. Cupp, 394 U.S. 731 (1969). Frazier states the foregoing by-now entrenched rule of criminal law so briefly that the reader might at first miss this rule, which is: “The questioning was of short duration, and petitioner was a mature individual of normal intelligence. The fact that the police misrepresented the statements that Rawls had made is, while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible. These cases must be decided by viewing the ‘totality of the circumstances.'” Frazier. 

What does the Virginia Supreme Court say about police prevarication during interrogations of criminal suspects?

About police lying, the Virginia Supreme Court says: “Even a lie on the part of an interrogating police officer does not, in and of itself, require a finding that a resulting confession was involuntary. In Frazier v. Cupp…, the Supreme Court made clear that even an outright falsehood by a police interrogator is but another factor to be considered in evaluating the totality of the circumstances.” Rodgers v. Commonwealth of Virginia, 227 Va. 605, 616 (1984). And here is a fine (not) how do you do, from the Virginia Supreme Court in Rodgers: “Rodgers submitted that the following statement was a promise of leniency: ‘We’re gonna [sic] submit this to the Commonwealth Attorney and then he makes the decision.’ We do not perceive this statement to be a promise of leniency. But even if it were a promise, such promises have generally been found insufficient to overbear a defendant’s free will.” Id. Consequently, simply asserting your right to remain silent with the police will avoid you the headache of fighting to undo any admissions or confessions to the police. Once adverse words leave your lips when with police, they can rarely be recalled. Additionally, police, being human, are at risk of misunderstanding, mis-rememberting and misconstruing your words. Even when your conversation with police is recorded, nothing assures that your words will be audible enough to counter any police misrepresentation of your words. 

How can police lying be limited to the interrogation room?

Bingo. Humans being humans, it is a challenge for police only to lie in the interrogation room but nowhere else. Police lying can be addictive for at least some, like eating more than one Lays potato chip after eating but one. Lying can be like turning on a water spigot that can never be turned off. Not long ago, a police officer in a protective order matter lied through his teeth that he did not have a report with him regarding the incident, but he then did a full 180 degree turn on the witness stand saying he had the report right in his hands. He admitted on the stand that he told me the foregoing lie, saying it was because he did not want to give me the report. Police decertifications this year have included dishonesty as a reason, including for reporting inaccuracies with one officer, and another cop’s fatally shooting his fiancee’s dog and lying about it to police, on top of dishonesty leading to the decertification of many more Virginia police officers since 2020.

Virginia criminal defendants must not lie. The truth will set you free.

When I started my criminal defense career many years ago, one of my colleagues warned me that I will be lied to repeatedly by my clients; I also learned about police lying. What do my clients think they will accomplish by lying to me? That violates their moral obligation to the truth and their contract with me. One lie often needs to be covered by more lies, and more lies need to cover each of those lies, and it does not end. In other words, telling even one lie on the witness stand — which violates your oath as a witness — can end up destroying a criminal defendant on when undergoing cross examination by the prosecutor. Lying to the police enables police to reveal your lies, and looks bad to the jury and judge, even if you do not take the witness stand. When I say the truth will set you free, I am not saying to talk to police without your lawyer present (doing that can be suicidal), nor to spill the beans on the witness stand. I am saying that silence also is not an untruth, and you have the Constitutional right to remain silent with everyone, so remember that important right.

When you hire Fairfax criminal lawyer Jonathan Katz, you are getting a lawyer who tirelessly pursues your best defense against Virginia DUI, drug, misdemeanor, and felony prosecutions. Find out the great defense that Jon Katz can deliver for you, by calling 703-383-1100 for your free initial in-person consultation with Jon about your court-pending case.