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 judges admissibility bailiwick?
o Do interrogators minimize misrepresenting probable prosecutorial outcomes and trespassing on the district attorneys prosecutorial discretion?
Successful Verdicts
Entrapment
- Does the operations design exploit sensible, safe opportunities to prove the offenses 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 jurors 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 targets unsympathetic motivations and affiliations instead of to the targets 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 interrogators deception exploit the suspects self-interest, need to shift blame or other unsympathetic motive or affiliation; or does the interrogators deception exploit the suspects 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 interrogators 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?
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Community Relations
Entrapment
- Do our policies and practices consider the impact of entrapment operations upon community trust and cooperation as well as the departments 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 departments 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?