The law of deception \u201cgiv[es] legal force to everyday norms of interpretation\u00a0and truth-telling.\u201d Societal consensus establishes that lying is wrong and that,\u00a0when the lies of an individual cause a specific harm, that individual should pay for\u00a0the harm. Conversely, when a lie does not result in harm, although many may\u00a0consider the lie immoral, society does not require punishment or liability. The American legal system reflects this idea in \u201cthe torts of negligent misrepresentation,\u00a0defamation, and slander; . . . civil and criminal securities fraud laws; and\u00a0laws prohibiting false advertising.\u201d These areas of the law differ in how they deal\u00a0with deceptive acts.Acommon element in each of these legal regimes, however, is\u00a0the requirement that some actual harm resulted from the deceptive act: a harm\u00a0requirement. The harm requirement ensures that individuals are only liable for\u00a0their deceit when they cause an actual injury and also provides a remedy for\u00a0those harmed by such deceit, provided they can show proof of actual harm. The\u00a0law also regulates deception in the context of citizen interaction with law\u00a0enforcement and other government officials. In that context, however, the element\u00a0of actual harm\u2014despite being nearly ubiquitous throughout the law of\u00a0deception\u2014disappears.<\/p>\n
This area of the law deals with the actions of both citizens who attempt to\u00a0deceive law enforcement officials and officials who attempt to deceive citizens. In\u00a0the first category\u2014the actions of ordinary citizens\u2014deceptive acts or false statements to government officials are criminalized under 18 U.S.C. \u00a7 1001. This\u00a0law aims to prevent the loss of information during law enforcement investigations\u00a0and to deter individuals who would lie to impede such investigations. Law\u00a0enforcement officials, however, often expect that suspects may lie to them in\u00a0criminal investigations, which brings into question whether an actual harm exists\u00a0where law enforcement officials know they are being lied to, particularly when the\u00a0lie in question is a simple denial of guilt. The broad application of \u00a7 1001 leads to\u00a0some instances in which no harm occurs, yet the deceiver is still punished\u2014a stark\u00a0contrast to other areas of the law of deceit that prevent liability without actual\u00a0harm. The law protects the second category\u2014deceit by government officials (e.g.,\u00a0police officers and prosecutors)\u2014such that officials are not held liable for the lies\u00a0they 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\u00a0nearly impossible to hold those officials responsible for such deceit. This approach\u00a0differs drastically from how the law treats lies by citizens both to the government\u00a0and to each other.<\/p>\n
The result is a double standard in the law of deception that governs interactions\u00a0between private citizens and law enforcement officials. In most areas of the law\u00a0that govern deceptive acts, a deceived individual must show an actual harm arising\u00a0from the deceptive act to recover. The opposite is true for deception between\u00a0citizens and law enforcement. When citizens lie to the police, they face punishment\u00a0regardless of whether harm resulted. Yet when police lie to citizens, they\u00a0remain free of liability even when actual harm results. Injured citizens are thus\u00a0robbed of a remedy that most areas of the law would provide simply because the\u00a0government, rather than another citizen, deceived them. Individuals who lie or\u00a0deceive law enforcement but cause no injury, however, are penalized for lies that\u00a0the law otherwise would not punish. To remedy this double standard, the law that\u00a0governs citizen interactions with law enforcement should adopt some form of the\u00a0harm requirement present throughout most of the law of deceit. A harm requirement\u00a0would allow harmed citizens to hold those who deceive them accountable\u00a0and would prevent the unfair punishment of citizens whose lies cause no harm.<\/p>\n
The law that governs deceit between citizens and law enforcement centers on a\u00a0strange double standard, and the harm requirement common in the law of\u00a0deception in other contexts offers a ready solution. Part I of this Note will provide\u00a0an overview of three areas of the law that deal with deception: the common law of\u00a0deceit, the law of false advertising, and securities law; and will highlight the harm\u00a0requirements prominent in each. Part II of the Note will explore lies made to law\u00a0enforcement officials, initially outlining the legal standard applied to such lies and\u00a0subsequently arguing that in some circumstances no actual harm results from such\u00a0lies. 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\u00a0work, to conduct searches and seizures, and to facilitate custodial interrogations, as\u00a0well as the legal and ethical standards that apply to deceptive conduct by\u00a0prosecutors, particularly in the plea-bargaining process. Part III will further review\u00a0real harms that occur as a result of lies by both police and prosecutors. The\u00a0concluding remarks will discuss the practical realities that explain why this double\u00a0standard exists and argue that the standards applied to deception of and by\u00a0government officials should be modified to incorporate some version of the harm\u00a0requirement present in the other areas of the law of deception. The harm\u00a0requirement presents a needed solution to the problematic double standard in the\u00a0law of deception that governs deceit between citizens and law enforcement.<\/p>\n