Lies, Omissions, and Concealment: The Golden Rule in Law Enforcement and the Federal Criminal Code



This essay was written for a symposium devoted to the topic of "Citizen Ignorance, Police Deception, and the Constitution." I begin crafting a federal theory of deception by comparing the standard of behavior the federal government expects from its citizens in order to avoid violating the substantive federal criminal code with the level of honesty that it expects of its law enforcement personnel, prosecutors, and judges in order to avoid violating the criminal procedural guarantees in the federal constitution. In Part I, I provide a brief description of constitutional regulation of citizen-police encounters, focusing on the difference between lies and omissions or concealment, and on the level of honesty that is required in different contexts. For example, there is no constitutional or statutory impediment to lying to a citizen during a sting operation. A much higher level of disclosure is required by the government in order to obtain a suspect's waiver of constitutional criminal procedural guarantees in the trial context than during street encounters. Furthermore, there is some disclosure of the ramifications of waiving trial rights that a federal judge must relay to a criminal defendant during a Rule 11 guilty plea colloquy. In Part II, I review select portions of the federal criminal code, particularly Perjury under 18 U.S.C. section 1621, False Statements under 18 U.S.C. section 1001, and the Mail and Wire fraud statutes, U.S.C. section 1341 and 1343. I will focus here on the differing government expectations regarding direct falsehoods versus concealment or failure to disclose material information. Finally, in Part III, I draw possible analogies between the level of honesty the federal government demands from its citizens upon pain of criminal sanction and the information it provides to criminal suspects, usually upon the risk of evidentiary exclusions at criminal trials or the possibility of monetary damages in civil rights actions. I conclude that there are significant differences in the level and types of honesty that the federal government expects from its citizens compared to its official treatment of these same citizens, and that the Court lacks a theory of honesty sufficiently coherent to justify this violation of the Golden Rule. I will conclude by suggesting the development of a federal theory of deception, provided by the government ex ante, that would consistently apply across various contexts.

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    ABSTRACT: In this essay, I respond to the position, taken by the Solicitor General of the U.S. Dept. of Justice in Chavez v. Martinez, 122 S.Ct. 2326 (2002) and by Professor Steven Clymer in 112 Yale L.J. 447 (2003), that the police are free to disgregard Miranda. I suggest that the privilege against self-incrimination is best viewed as a ban on certain official conduct outside of a criminal trial, not as an evidentiary rule. The Supreme Court in Kastigar v. United States, by blessing prosecutorial grants of immunity pursuant to statute, did not intend to extend this same authority to police officers in back rooms. I further argue that a deliberate violation of any right invoked under Miranda should give rise to a viable civil rights claim. Scholarly attacks on Miranda are simply misdirected unhappiness with the privilege itself. Finally, I suggest that the tragic events of September 11, 2001, do not warrant the abandonment of the privilege in ordinary domestic criminal cases.
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