Volume 55

A Double Standard in the Law of Deception: When Lies to the Government Are Penalized and Lies by the Government Are Protected

by Bonnie Trunley

The law of deception “giv[es] legal force to everyday norms of interpretation and truth-telling.” Societal consensus establishes that lying is wrong and that, when the lies of an individual cause a specific harm, that individual should pay for the harm. Conversely, when a lie does not result in harm, although many may consider the lie immoral, society does not require punishment or liability. The American legal system reflects this idea in “the torts of negligent misrepresentation, defamation, and slander; . . . civil and criminal securities fraud laws; and laws prohibiting false advertising.” These areas of the law differ in how they deal with deceptive acts.Acommon element in each of these legal regimes, however, is the requirement that some actual harm resulted from the deceptive act: a harm requirement. The harm requirement ensures that individuals are only liable for their deceit when they cause an actual injury and also provides a remedy for those harmed by such deceit, provided they can show proof of actual harm. The law also regulates deception in the context of citizen interaction with law enforcement and other government officials. In that context, however, the element of actual harm—despite being nearly ubiquitous throughout the law of deception—disappears.

This area of the law deals with the actions of both citizens who attempt to deceive law enforcement officials and officials who attempt to deceive citizens. In the first category—the actions of ordinary citizens—deceptive acts or false statements to government officials are criminalized under 18 U.S.C. § 1001. This law aims to prevent the loss of information during law enforcement investigations and to deter individuals who would lie to impede such investigations. Law enforcement officials, however, often expect that suspects may lie to them in criminal investigations, which brings into question whether an actual harm exists where law enforcement officials know they are being lied to, particularly when the lie in question is a simple denial of guilt. The broad application of § 1001 leads to some instances in which no harm occurs, yet the deceiver is still punished—a stark contrast to other areas of the law of deceit that prevent liability without actual harm. The law protects the second category—deceit by government officials (e.g., police officers and prosecutors)—such that officials are not held liable for the lies they tell to suspects or defendants, regardless of the real harm such lies may cause. While not all lies by government officials result in harm, when they do, it is nearly impossible to hold those officials responsible for such deceit. This approach differs drastically from how the law treats lies by citizens both to the government and to each other.

The result is a double standard in the law of deception that governs interactions between private citizens and law enforcement officials. In most areas of the law that govern deceptive acts, a deceived individual must show an actual harm arising from the deceptive act to recover. The opposite is true for deception between citizens and law enforcement. When citizens lie to the police, they face punishment regardless of whether harm resulted. Yet when police lie to citizens, they remain free of liability even when actual harm results. Injured citizens are thus robbed of a remedy that most areas of the law would provide simply because the government, rather than another citizen, deceived them. Individuals who lie or deceive law enforcement but cause no injury, however, are penalized for lies that the law otherwise would not punish. To remedy this double standard, the law that governs citizen interactions with law enforcement should adopt some form of the harm requirement present throughout most of the law of deceit. A harm requirement would allow harmed citizens to hold those who deceive them accountable and would prevent the unfair punishment of citizens whose lies cause no harm.

The law that governs deceit between citizens and law enforcement centers on a strange double standard, and the harm requirement common in the law of deception in other contexts offers a ready solution. Part I of this Note will provide an overview of three areas of the law that deal with deception: the common law of deceit, the law of false advertising, and securities law; and will highlight the harm requirements prominent in each. Part II of the Note will explore lies made to law enforcement officials, initially outlining the legal standard applied to such lies and subsequently arguing that in some circumstances no actual harm results from such lies. Part III will discuss lies and deceit perpetrated by law enforcement officials. It will first examine the legal standards that apply to lies police use in undercover work, to conduct searches and seizures, and to facilitate custodial interrogations, as well as the legal and ethical standards that apply to deceptive conduct by prosecutors, particularly in the plea-bargaining process. Part III will further review real harms that occur as a result of lies by both police and prosecutors. The concluding remarks will discuss the practical realities that explain why this double standard exists and argue that the standards applied to deception of and by government officials should be modified to incorporate some version of the harm requirement present in the other areas of the law of deception. The harm requirement presents a needed solution to the problematic double standard in the law of deception that governs deceit between citizens and law enforcement.

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