Deception Operations Checklist

Presented by Jeff Fluck

 


 

Legal Compliance

 

Entrapment

-          Does the operation use relatively mild inducements to target suspects under circumstances that evidence their predisposition?

Interrogation

-          Do our interrogation policies, training and procedures insulate the rights warning / waiver process from unlawful inducements, threats and deception?

-          Do our post-waiver interrogation policies, training and procedures allow deception to be used deliberately to elicit a materially false response?

-          Do our post-waiver interrogation policies, training and procedures allow deception so outrageous it might reasonably cause even an innocent person to confess?

o       Do interrogators minimize misrepresenting probable legal outcomes and trespassing on the trial judge’s admissibility bailiwick?

o       Do interrogators minimize misrepresenting probable prosecutorial outcomes and trespassing on the district attorney’s prosecutorial discretion? 

 

Successful Verdicts

 

Entrapment

-          Does the operation’s design exploit sensible, safe opportunities to prove the offense’s elements?

o       Mens rea?

o       Circumstances?

o       Actus reus?

-          Are there any weaknesses in the existing or anticipated proof that can be bolstered by the operation?

o       Admissibility problems?

o       Credibility problems?

-          From a juror’s perspective, are we targeting the right crime and the right criminals?

o       Crime harmful to others?

o       Crime large-scale, pervasive or otherwise aggravated?

o       Crime being committed more often?

o       Criminal otherwise dangerous to community?

§         Minor crime to catch major criminal?

§         Minor crime to catch law-abiding citizen to improve enforcement statistics?

o       Realistically, are there effective enforcement alternatives to reduce the incidence of this particular crime or convict this particular criminal?

-          Does the operation appeal to the target’s unsympathetic motivations and affiliations instead of to the target’s noble motivations and affiliations and better nature?

Interrogation

-          Do our interrogation policies, training and procedures ensure that interrogators consider and cover the elements of the focal and related offenses?

o       Mens rea?

o       Circumstances?

o       Actus reus?

-          Are there any weaknesses in the existing proof that can be bolstered through interrogation?

o       Admissibility problems?

o       Credibility problems?

-          Qualitative tailoring.  Does the interrogator’s deception exploit the suspect’s self-interest, need to shift blame or other unsympathetic motive or affiliation; or does the interrogator’s deception exploit the suspect’s religion, socially acceptable affiliations or other more laudable motivating values?

o       Is the unsympathetic motive made evident?

o       Does the interrogator avoid falsely including himself in the same group or falsely holding the same values?

-          Other tailoring. 

o       Timing.  Does the interrogator’s deception begin only after the suspect has repeatedly lied or evaded?

o       Amount. Does the interrogator use excessive deception with the risk that some of the exploited motives or affiliations will be shared by more jurors?

 

Post-verdict Success

 

Sentencing

-          Are there aggravating factors concerning this crime or criminal that can be proven through this operation or interrogation?

o       Statutory factors?

o       Guideline factors?

o       Common-sense factors?

Anticipating Appeal

-          Are there opportunities presented by this operation or interrogation to minimize exposure to current or foreseeable defense appellate arguments?

-           

Community Relations

Entrapment

-          Do our policies and practices consider the impact of entrapment operations upon community trust and cooperation as well as the department’s reputation and effectiveness?

-          Do our policies and practices have a disparate impact upon different segments of the community?

o       Does this affect community relations and the department’s reputation and effectiveness?

o       Does this pose any realistic risk of civil litigation?

-          Do our policies and practices pose any ancillary risks that may affect the department?

Interrogation

-          Do our policies and practices consider the impact of widespread deception upon community trust and cooperation?

Ruse Entries

-          Have our policies and practices become sufficiently common to reduce the safety and efficiency of the agencies we pretend to represent?

o       Government and regulatory agencies?

o       Utilities?

o       Private enterprise?