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?