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In Bad Blood: The Moral Stigmatization of Paid PlasmaDonors, Martin

Kretzmann outlinesthe waythat commercialblood plasmacenterslabelthe clients

who sellthem plasmaas deviant.Although donating blood and other servicesmay

be considered altruistic, sellingit renders the client discreditable,and this defini

tion is forced onto donors by the policiesand practicesof the center s administra

tive and medical staff.Kretzmann compares the treatment of paid and unpaid

donors, the assumptionsimplicitlymade about their statusand the worth of their

blood, and the implicationsthis hasfor the identity labelsthat clientsassume.

The judicial labeling process is the focus of LisaFrohmann s Discrediting

Victims Allegations of SexualAssault: Prosecutorial Accounts of Case Rejec

tions. Frohmann discussesthe organizationaldynamicsof the prosecutor s office,

focusing on the waysin which rape casesand rape victims are typified, with

those displaying discrepant (that is, individualized) features discredited. Com

plainants are made to feel deviant and devaluedif their casesdo not mold to the

norm, and their casesare dropped from further legalpursuit. This caseis particu

larlyinteresting because it is the rape victims,not the offenders,who aremade to

feeldisvaluedby institutional processingassumptionsand procedures.

Therefore, individuals operating within institutional frameworks are likely to

be affected by the organizational dynamics shaping these frameworks. They are

either spurred to deviance or labeled asdeviantby their bureaucraticmechanisms.

16

P RT I V

15

Fluffing Up the Evidence

and Covering Your Ass

On Police Lying

TOM BARKER AND DAVID CARTER

lying

nd other deceptive practices are an integral part of the police offi

cer s working enviromnent. At fIrst blush, one s reaction to this statement

might be rather forthright. Police officers should not lie. Ifyou can t trust

your local police who can you trust. However, aswith most issuesthe matter

is not that simple.

We are all aware that police officers create false identities for undercover

operations. We know that they make falsepromises to hostage takers and kid

nappers. We alsoknow officerswill strain the truth in order to spare the feel

ings of a rrime victim and his/her loved ones. Police officersaretrained to lie

and be deceptive in these law enforcement practices. They are also trained to

use techniques of interrogation which require deception and even outright

lying. Police officerslearn much of this in the police academy.Where they are

alsowarned about the impropriety of perjury and the need to record all inci

dents fully and accurately in all officialreports. The recruit learns that all rules

and regulations must be obeyed. He/she learns of the danger oflying to inter

nal affairsor a supervisor. The recruit istold to be truthful in his dealingswith

the noncriminal element of the public in that mutual trust isan important el

ement in police community relations. Once the recruit leavesthe academy

and in some departments where officers work in the fIeld before attending

rookie school-the officer soon learns from his/her peers that police lying is

the norm under certain circumstances.

Our purpose isto discussthe patterns oflying which might occur in a po

lice organization, the circumstances under which they occur, and the possible

consequences of police lying.

From F lu ff ing Up the Evidenc e and Cover ing Your Ass : Some Concept ua l Not es

on Pol ice Lying, Tom Barker and David Carter, Deviant ehavior V. 11, No.1,

Taylor Francis.Inc., Washington, D.C., pp. 61-73, 1990.Reprinted with permission.

All rights reserved.

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ccepted Lying

Certain forms of police lying and/ or deception are an accepted part of police

officers working environment. The lies told iu this category are accepted by

the police organization because they fulfill a defined police purpose. Adminis

trators and individual police officers believe that certain lies are necessary to

control crime and arrest the guilty. In these instances, the organization will

freely admit the intent to lie and define the actsas legitimate policing strate

gies. On face value, most would agree with the police that lies in this category

are acceptable and necessary. However, a troubling and difficult question is to

what extent, ifat all is i t proper for law enforcement officials to employ trick

ery and deceit aspart of their law enforcement practices (Skolnick, 1982,

italics added)? Aswe shall see, the answer to this question isnot so easy.Ac

ceptable liesmay be very functional for the police but are they alwaysproper,

moral, ethical, and legal?

The most readily apparent patterns of accepted police lying are the de

ceptive practices that law enforcement officers believe are necessary to per

form undercover operations or detect other forms of secret and consensual

crimes. Police officers engaged in these activitiesmust not only conceal their

true identity but they must talk, act, and dress out of character, fabricating all

kinds of stories in order to perform these duties. One could hardly imagine

that FBI Special Agent Joseph Pistone could have operated for six years in the

Mafia without the substantial number oflies he had to tell (Pistone, 1987).

However, the overwhelming majority of undercover operations are not as

glamorous nor asdangerous asworking six years with the Mafia or other or

ganized crime groups. The most common police undercover operations occur

in routine vice operations dealing with prostitution, bootlegging, gambling,

narcotics, bribery of public officials (e.g. ABSCAM, MILAB, BRILAB), and

spng operations.

These deceptive practices in undercover operations are not only acceptable

to the law enforcement community but considered necessary for undercover

operations to be effective. Nevertheless, such activities are not without prob

lems. The Dirty Harry problem in police work raises the question as to

what extent morally good police practices warrant orjustify ethically, politi

cally,or legally suspect means to achieve law enforcement objectives (Klockars,

1980). Marx alsoraisesthe issue that many of the tactics used by law enforce

ment officers in such recent undercover operations asABSCAM, MILAB,

and BRILAB, police run fencing or sting operations and anti-crime decoy

squads may have lost sight of the profound difference between carrying out

an investigation to determine if a suspect is, in fact, breaking the law,and car

rying it out to determine if an individual can be induced to break the law

(Marx, 1985: 106). One Congressman involved in the ABSCAM caserefused

the first offer of a cashbribe to only later accept the money after federal agents,

concluding that he was an alcoholic, gavehim liquor (Marx, 1985: 104).

Encouraging the commission of a crime may be a legally accepted police

practice when the officer acts asa willing victim or his/her actions facilitate

the commission ofa crime which was going to be committed in the first place.

However, it is possible for encouragement to lead the suspect to raise the

defense of entrapment. According to lack s L aw Dictionary entrapment is the

act of officers or agents of the government in inducing a person to commit a

crime not contemplated by him, for the purpose of instituting a criminal pros

ecution against him (277). For the defense of entrapment to prevail the de

fendant must show that the officer or his/her agent has gone beyond providing

the encouragement and opportunity for the commission of a crime and

through trickery, fraud, or other deception has induced the suspect to commit

a crime. This defense is raised far more times than it is successfulbecause the

current legal criterion to determine entrapment iswhat isknown asthe sub

jective test.

In the subjective test the predisposition of the offender rather than the ob

jective methods of the police is the key factor in determining entrapment

(Skolnick, 1982; Marx, 1985; Stitt and James, 1985). This makes it extremely

difficult for a defendant with a criminal record to claim that he/she would not

have committed the crime except for the actions of the officer. The objec

tive test of entrapment raised by a minority of the Supreme Court has fo

cused on the nature of the police conduct rather than the predisposition of the

offender (Stitt and James, 1985). For example, the objective test probably

would examine whether the production of crack by a police organization to

use in undercover drug arrests isproper and legal....

Police administrators are well aware of the possibility that the entire or

ganization may be labeled deviant because of the deviant acts of its mem

bers. The rotten apple theory of police corruption has often been used as

an impression management technique by police administrators who are

aware of this possibility (Barker, 1977). It is easier to explain police deviance

as a result of individual aberrations than admit the possibility of systemic

problems and invite public scrutiny. However, candor and public scrutiny

maybe the best way to insure that corruption and other forms ofpolice de

viance do not occur or continue in an organization (see Cooper and Belair,

1978).

Thus, accepted liesare those which the organization views as having a vi-

ablerole in police operations. The criteria for the lie to be accepted is:

It must be in furtherance of a legitimate organizational purpose.

There must be a clear relationship between the need to deceive and the

accomplishment of an organizational purpose.

The nature ofthe deception must be one wherein officersand the man

agement structure acknowledge that deception will better serve the public

interest than the truth.

The ethical standing of the deception and the issue oflaw appear to be collat

eral concerns.

6

PART I V ORGAN IZAT IONAL I NSTI TU TIONAL DEVI ANCE

T XONOMY OF POLI E LIES

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olerated ying

A second category of police lies are those which are recognized as lies by

the police organization but are tolerated as necessary evils. Police adminis

t rators wi ll admi t to deception or not exact ly tell ing the whole t ruth when

confronted with the facts. These types of s ituat iona l or white l ie s are truly

in the gray area of propriety and the police can provide logical rationales for

their use. When viewed from an ethical standpoint they may be wrong but

from the police perspective they are necessary (i.e. , tolerated) to achieve orga

nizational objectives or deal wi th what Golds tein has termed the basic prob

lems of pol ice work (Goldstein, 1977: 9).

The bas ic problems of police work arise from the mythology surrounding

police work; e.g. , s ta tu tes usually requi re and the publ ic expects the pol ice to

enforce all the laws all the time, the public holds the police responsible for

preventing crime and apprehending al l cr iminals, the public views the police

as being capable of handling al l emergencies , etc. (Golds te in , ~977). Most po

l ice administ rators wi ll not publ icly admi t that they do not have the resources ,

the training, or the authority to do some of the duties that the pubic expects.

In fac t, many police adminis trators and pol ice officers lacking the education

and insight into police work would be hard pressed to explain police work,

particular ly discretionary decision making to outside groups. They therefore

resort to l ie s and deception to support police prac tices .

Police administ rators often deny that the ir departments pract ice anything

less than full enforcement of all laws rather than attempt to explain the basis

for police discretionary decisions and selective enforcement. We continually

at tempt to dea l with socia l problems through the use of cr iminal sanct ions and

law enforcement personnel . Mandatory sentencing for al l offenders commit

ting certain felony and misdemeanor offenses is often seen as a panacea for

these offenses. For example, in recent years many polit ically active groups such

as Mothers Against Drunk Drivers (M.A.D.D.) have pressured legis lators for

s tronger laws wi th mandatory enforcement in drunk driving cases . However ,

thei r sent iment in cases not involving accidents may not be shared by the gen

eral public (Formby and Smykla, 1984) or the police. One can only speculate

as to the number of discretionary dec is ions st il l being made by pol ice off icers

in DUI offenses in departments where ful l enforcement i s the official policy.

One of the authors learned of an individual who had two DUI offenses re

duced and asked a police supervisor about it .

arker

The chief said that all DUI suspects are charged and those over the

lega l blood alcohol level never have the charge reduced. In fact , he said

this at a M.A.D.D. meeting. Yet, I heard that (--) had two DUI

offenses reduced.

Supervisor

That is true, Tom. However, (--) is helping us with some

drug cases. M.A.D.D. may not understand but they do not have to make

drug busts.

The point of note is that the police, in response to political pressure, make a

policy on DUI cases and vow that the policy will be followed. However, in

this case, that vow was not t rue. The pol ice made a discretionary judgement

that the assistance of the DUI offender in drug investigations was of greater

importance than a DUI prosecution. Thus, this policy deviation was tan

tamount to a lie to the M.A.D.D. membership-a lie tolerated by the police

department.

The publ ic al so expects the police to handle any disorde rly or emergency

s ituations . The American publ ic bel ieves that one of the methods for handling

any problem is call ing the cops (Bit tner , 1972). However , in many of these

order maintenance si tuat ions the pol ice do not have the authority , resources ,

or t rain ing to dea l wi th the problem. They often face a s ituat ion where some

thing must be done now ye t an arres t i snot legal ly possible or would be more

disruptive. The officer is forced to reach into a bag of tricks for a method of

deal ing with the cris is . Lying to the suspects or the complainants is often that

method. For example, .. . in domestic disturbances police off ice rs face volat ile

s ituat ions where the necessa ry condi tions for an arres t often are not present .

Frequent ly the re i s a misdemeanor where the off icer does not have a warrant,

an offense has not been committed in his/her presence, and the incident oc

curred in a private residence. However, the officer may feel that something

must be done. Consequently, the officer may lie and threaten to arrest one or

both combatants, or take one of the parties out to the street or the patrol car

to discuss the inc ident and arrest them for disorderly conduct or public in tox

ication when they reach public property. Another option is to make an arrest

and lie about the cir cumstances in order to make the arrest appear legal. Ob

vious ly, the lat ter s trategy will not be a tolerated pat tern oflying. I t would fal l

in to the pa ttern of deviant lying to be discussed later .

Off icers soon learn that the interrogat ion s tage of an arrest is an area where

cer tain lies are tolerated and even taught to police officers. The now famous

Miranda v. Arizona case decided by the U.S. Supreme Cour t in 1966 quoted

excerpts from Inbau and Reid s

Criminal Interrogation and Confession

text to

show tha t the police used deception and psychologically coercive methods in

thei r interrogation of suspects (George, 1966: 155-266). The latest edit ion of

this same text gives examples of deceptive and lying practices for ... skilled

interrogators to engage in (Inbau, Reid , Buckley, 1986).

As an illustration of these techniques ... the book notes that an effective

means to inter rogate multiple suspects of a crime is p laying one offender

against the other. In this regard it is suggested that the i nter rogator may

merely intimate to one offender that the other has confessed, or else the inter

rogator may actually tell the offender so (emphasis added, p. 132).

This attitude, which is borne in the frustrations of many officers, sets a

dangerous precedent for att itudes related to civil l iberties. When law enforce

ment officers begin to tolerate lies because it serves their ends-regardless of

the consti tu tional and e thica l impl ications of those lies -then fundamental el

ements of civil rights are threatened.

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PART I V ORGAN IZAT IONAL I NSTI TU TIONAL D EV IAN CE

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ON LUSION

The effects of lying, even those which are acceptable or tolerated, are multi

fold. Liescan and do create distrust within the organization. When the public

Skolnick has suggested that perjury and corruption are both systematic forms

ofpolice deviance which occur for the same sort of reason: police know that

other police are on the take and police know that other police are perjuring

themselves (Skolnick, 1982: 42).

It isalso possible that other forms of police deviance will lead to deviant

lying. For example, the officer who commits an act of police brutality may

have to lie on the report to his/her supervisor and during testimony to avoid

the possibility of criminal sanction, a civillawsuit, or department charges. The

off icer who has sex on duty, or sleepsor drinks on duty may haveto l ie to a

supervisor or internal affairs to avoid department discipline. The officer who

causesan injury or death to a suspect which isnot strictly according to law or

police policy may have to l ie to protect himself or his fel low officers from

criminal and/or civilliability.

Other implications ... were clear: officerswere willing to lie during the

sworn deposition to protect themselves and others. They would swear to the

truth of facts which were plainly manufactured for their protection. More

over, their remorse was not that they lied, but that they got caught in miscon

duct. Similarly,a police chief in West Virginia recently told a federal judge he

lied to investigators in order to cover up for four officers accused of beating

handcuffed prisoners Law Enforcement News, March 15, 1989, p. 2). Again,

the illegitimate goal of protection surfacesas a motive for lying.

The typical police bureaucracy isa complex organization with a myriad of

rules and regulations. The informal organization, including many supervisors,

overlooks these rules until someone decides to nail someone. Given the

plethora of rules and regulations in most large urban police departments it is

virtually impossible to work a shift without violating one. It may be common

practice to eat a free meal, leave one's beat for personal reasons, not wear one's

ha t when out of the car , to l ive outside the c ity l imits, etc. All of these acts

may be forbidden by a policy, rule, or regulation. When a supervisor decides

to discipline an officer for violating one of these acts, the officer, and often

fellow officers, may resort to lies to protect themselves and each other. Mter

all,such minor lies are inherent in the Blue Code. Manning observesthat

rule enforcement by police supervisors represents a mock bureaucracy where

ritualistic and punitive enforcement is applied after the fact (Manning, 1978).

The consequences of these seemingly understandable lies can be disastrous

when discovered. The officer(s) may be suspended, reduced in rank, or dis

missed. The same organization where members routinely engage in accept

able, tolerated, and deviant lying practices can take on a very moralistic attitude

when it discovers that one of its own has told a lie to avoid internal discipline.

Nevertheless, the lies told in these examples are told in support of the illegiti

mate goal of avoiding departmental discipline.

9

Kitte l, N. G. 1986. Pol ice Perjury:

Criminal Defense Attorneys' Perspec

tive. Americanjournal of Criminaljus

ticeXI(I): 11-22.

Klockar s, C . B. 1980. The Di rt y Ha rry

Problem.

The Annals,

452: 33-47

(November).

Law Enforcement News.

1989. March 15: 2

Manning, P. K. 1978. Lying, Secrecy and

Social Control. In Peter K. Manning

and John Van Maanen (Eds. ), Policing:

A Viewfrom the S treet. Santa Mon

ica , CA: Goodyear Publishing Co. ,

238-255.

Marx, G. T . 1985 . Who Real ly Get s

Stung? Some IssuesRaised by the

New Police Undercover Work. In

F. A. Elliston and Michael Feldberg

(Eds.), Moral Issuesin police Work. To

towa, NJ: Rowrnan and Alianheld .

New York Times. 1989. Dead Officer,

Dropped Charges: A Scandal in

Boston. March 20: K9.

Pistone ,] . D. 1987. Donnie Brasco:My

UndercoverLife in theMafia. New

York: Nail Books.

Skolnick,]. 1982. Deception by Police.

Criminaljustice Ethics. 1(2): 40-54.

S ti tt , B . G. , and Gene G. James. 1985.

Entrapment: An Ethical Analysis. In

F. A. Elliston and Michael Feldberg

(Eds.),

Moral Issues in PoliceWork.

To

towa, NJ: Rowrnan and AlIanheld .

Wo1chover, D. 1986. Pol ice Perjury in

London.

New Lawjournal: 180-184

(February).

FLUFFING UPTHE EVIDENCE AND COVER ING YOUR ASS

R F R N S

Barker , T . 1977. Peer Group Suppor t for

Police Organizational Deviance.

Criminology 15(3): 353-366.

___ . 1978. An Empirical Study of

Pol ice Deviance Other Than Corrup

tion.

journal of PoliceScietue andAd

ministration. 6(3): 264-272.

Bittner, E. 1972. The Functions of thepolice

in Modem Society.

Washington, DC:

U.S. Government Printing Office.

Birmingham post-Herald. 1989. Sheriff's

Chemist Makes Crack. April 19: B2.

Bla ck, H. C. 1983 . Black s Law Dictionary,

Abridged Fifth Edition. St. Paul, MN:

West publishing Co.

Cooper , G. R., a nd Rober t R . Be lai r.

1978. Privacyand Security

if

Criminal

History Information: Privacy and the

Media. U.S. Department ofJustice.

Washington, DC: U.S. Government

Printing Office.

Dershowitz, A. M. 1983. The Best Difense.

New York: Vintage Books.

Formby, W. A ., and John O. Smyk la .

1984. Att itudes and Percept ion T

0

ward Drinking and Driving: A Simu

lation of Citizen Awareness. journal

of PoliceScienceand Administration.

12(4): 379-384.

George, ]. B. 1966. Constitutional Limita

tions on Evidence in Criminal Cases.

Ann Arbor, MI: Institute ofContinu

ing Legal Education.

Goldstein, H. 1977.

Policinga FreeSociety.

Cambridge, MA: Ballenger Publishing

Company.

Inbau, F. E .,] . E . Reid, and Joseph P.

Buckley. 1986. Criminal Interrogation

and Confessions, 3rd ed. Baltimore:

Williams and Wilkins.

learns members of the police lie or engage in deceptive practices this can un

dermine citizen confidence in the police. Aswe have seen some police liesvi

olate citizens' civil rights and others are told to cover up civil rights violations.

Police lying contributes to police misconduct and corruption and undermines

the organization's discipline system. Furthermore, deviant police lies under

mine the effectivenessof the criminaljustice system.

PART IV ORGAN IZATIONAL INSTITUTIONAL DEVIANCE

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