Deception In The Investigative Process

Contents

TOC o “1-3” h z u HYPERLINK l “_Toc377058423” Ethics and Lying to Get the Truth PAGEREF _Toc377058423 h 1

HYPERLINK l “_Toc377058424” Do Ends Justify the Means? PAGEREF _Toc377058424 h 2

HYPERLINK l “_Toc377058425” Conflict between Code of Ethics and Law Enforcement Practices PAGEREF _Toc377058425 h 3

HYPERLINK l “_Toc377058426” Physical Behavior and Non-Verbal Communication in Detecting Deception PAGEREF _Toc377058426 h 5

HYPERLINK l “_Toc377058427” Conclusion PAGEREF _Toc377058427 h 5

HYPERLINK l “_Toc377058428” References PAGEREF _Toc377058428 h 6

Ethics and Lying to Get the TruthDeception refers to an act of deliberately misleading a person in order to achieve a premeditated intention. In criminal justice procedures, deception is an investigative tool that is used prevalently by investigating officers. Deception is mainly used in the detecting process where alleged criminals are deliberately misled to give up information that is pertinent to the crime before the case is presented in court. There are other forms of psychological persuasion for information which include seduction, manipulation, and all other means of non-violent coercion through the use of what is generally referred to as “white lies.” An ethical question that arises from this sanctioned use deception is whether it is morally right to lie in the search for truth.

The question can be approached from two perspectives. One is from an ontological point of view which leans on a realistic justification for the use of deception on the basis of the good that will come out of it for the whole community. The second approach is from the more idealistic deontological perspective which is based on ideas by philosophers like Immanuel Kant who held that, “moral conduct means acting within a constraining framework of principles that are independent of consequential considerations” (Herman, 2006, p. 344). From this line of thinking it emerges that if lying is considered to be morally unacceptable, then it should not be used for any purpose regardless of what good it might bring.

From an ontological perspective, truth is an end that holds priority over the means used to achieve it. The close relationship between ontology and critical realism supports the premise that ultimate truth exists on such levels like scientific investigation but not morality. In this regard any pursuit of truth is justified regardless of its moral implication. Therefore if the objective is to arrive at an ultimate truth, then the use of lies is justified. A good example is the government’s duty to national security by eliminating existing and potential threats through investigative intelligence gathering. An ontological view maintains that covert intelligence, which is based deception techniques, is not only justified but necessary in ensuring national security (Pfaff, 2006, p. 4). This implies that in pursuit of legitimate information, nothing is off-limits, including matters to do with moral justification.

An opposing view is held by deontologists who are considered to be moral absolutists. From a deontologist perspective, the act of lying is wrong no matter how positive its consequences might be. According to Immanuel Kant, goodwill is the only absolutely good thing therefore the moral value of an action is judged by the will of whoever is doing it. If the action is performed under a negative maxim then it is wrong. Starting out by stating that “I shall lie to get the truth” is morally wrong regardless of whether the truth being sought is arrived at. Lying is accorded similar treatment with absolute maxims like “thou shalt not kill.” Kantian philosophy is based on “categorical imperatives” that are absolute since they value human dignity and treat people as ends in themselves. It is an idealism rooted on the universal Golden Rule that requires everyone to treat others as he or she would expect to be treated.

Do Ends Justify the Means?The argument on ethical implications of lying to get the truth can be taken a step further by asking whether the end really justify the means. The deontologists hold that any moral action must consider itself not only as a principle but as an end too. A good society should seek justice for all, therefore employing unjust means works against the end it seeks to serve. It is unethical to lie in pursuit of a good end like seeking for information. It would be like trying to construct a good house using wrong or inferior materials.

Deontologist emphasize on giving a closer examination of the perceived good end in before attempting to justify the means. Of great concern should be how the bad means affect the end. The use of lies to get truth does not produce a genuine response but one that is subject to the lie. Therefore a morally wrong means ultimately affects the end negatively. A case in point is in power politics games or in war where success determines the justification of the means used to achieve it. This is an ontological approach that pays very little or no concern at all to morality. Means used in this perspective are measured by their expediency which is a position that contrasts deontological ethics where expediency and moral justification are two different aspects.

It is quite obvious that anyone who violates his or her moral code in pursuit of a goal, no matter how good that goal is, takes a downward path of moral degradation. This is because after the first time, adopting unethical techniques like lying to find a truth becomes a habit in which the stakes are raised to a situation where any rule can be bent or broken. The problem lies in where this chain of logic stops. Invading a foreign country can not be justified on national security grounds or on the pretext that the invasion is the best thing for that country’s citizens, however true or false the claims may be.

Conflict between Code of Ethics and Law Enforcement PracticesAs professionals, law enforcement officers are expected to provide a service that benefits the society. In this regard, ethics and ethical standards pertaining to “doing the right thing at the right time in the right way and for the right reason” are important aspects in the practice (Hansen, 1973, p. 46). It is for this reason that the International Association of Chiefs of Police (IACP) came up with a code of ethics in 1957, and later updated in October 1991, to govern the conduct of law enforcement officers. These officers are expected to follow the values and norms of the society and exemplify respect for the law and ethical behavior. Therefore law enforcement officers must lead the society in upholding social values and norms by living by the code. Law enforcement code of ethics works together with the police code of ethics by providing guidelines on how to act with impartiality, discretion, integrity and professional image at all times. Thus law enforcement agencies do not operate in a moral vacuum. However, at a practical level application of ethics in this field is not a black and white issue.

The conflict between ethics and law enforcement practices occurs when rules limit police conduct during investigation making the officers resort unethical practices. The irony is in the fact that when use of coercion is restricted, there is an increase in the use of deception. Deception occurs in the form Miranda admonitions, misrepresentation of the offence and its seriousness, false promises, and fabricated evidence. From an ontological perspective, deception is an effective tool because it can reach to the conscience of the suspect while he or she has a sense of right and wrong. It makes the work of the interrogator easier in uncovering the motive behind the crime. The conflict is further emphasized by the courts which, in as much as they do not openly support deception, they do not prohibit it either.

From a deontological perspective, deception is retrogressive because when it is used on an uncooperative suspect who is unwilling to divulge information, the investigator might be inclined to delve deeper and deeper into a tangle of lies until he or she crosses the line between legality and illegality. This is one of the reasons why defense attorneys often have to establish whether the investigator lied in the course of the investigation. The deontological imperative that lying is wrong pits investigation and interrogation practices in conflict with ethics for law enforcement officers. Maintaining ethical standards therefore acts as a limitation to efficiency in investigations.

Physical Behavior and Non-Verbal Communication in Detecting DeceptionDeception can be detected in non-verbal communication and physical behavior. The art of detecting non-verbal deception is often used by police and security officers in interrogating suspects. In detecting deception through body language on evaluates changes in physical expression which will be limited and stiff with very little hand motions when a person is lying. Avoiding eye contact has often been the easiest way to tell when a person is lying. Other body motions that indicate lying include touching face, throat, and mouth with the hands and scratching motions on the nose, behind the ear, and across the head. When the timing and duration of gestures and emotions is longer than normal, the person is lying.

ConclusionDeception and the use of lies have no place in law enforcement. It is undeniable that ethical concerns are integral in law enforcement practices especially in a liberal democracy. For interrogative and other investigative practices to be justified, they must subscribe to ethical standards that not only represent the goals of their profession but also adhere to the moral values of the community. The words of former CIA director Stansfield Turner put it more accurately when he states, “There is one overall test of the ethics of human intelligence activities. That is whether those approving them feel they could defend their actions before the public if the actions became public” (Quinlan, 2007, p. 2).

ReferencesHansen, D. (1973). Police ethics. Chicago, IL: Charles C. Thomas.

Herman, Michael. (2006). Intelligence Power in Peace and War. Cambridge: CambridgeUniversity Press.

Pfaff, T. (2006). Bungee jumping off the moral highground: Ethics of espionage in the modernage. In Ethics of Spying: A Reader for the Intelligence Professional. Jan Goldman (ed.).Maryland: The Scarecrow Press, Inc. 3-56.

Quinlan, M. (2007). Just intelligence: prolegomena to an ethical theory. Intelligence andNational Security. 22(1), 2-11.