When Federal Agents Are Allowed to Lie to You.

Yes. Federal agents can use verbal deception in an effort to get someone to admit to a federal crime. However, while a suspect has the privilege to refuse to answer, “the privilege does not create a right to answer falsely.”

A simple false denial can still violate 18 U.S.C. Section 1001 when its other elements are satisfied: “It is important to note that a suspect’s ‘denial of guilt or the false assertion that an individual is not the person sought’ can constitute a prohibited material false statement.”

Before you talk to federal agents, seek legal counsel. A lawyer may be able to determine whether talking to the government will lead to an indictment or whether it can put you in a better position to avoid one. A lawyer can also negotiate the terms of the interview, the terms of a proffer and/or immunity, or terms for surrendering or to avoid charges altogether.

Related Legal Issues and Topics

• Frazier v. Cupp, 394 U.S. 731 (1969): “The court’s holding that ‘deception in the interrogation process alone does not render the resulting confession involuntary’ is often cited to show that undercover agents and officers can use various deceptive tactics.”
• Undercover Agents’ Duty to Disclose Their Government Affiliation: “Undercover agents generally have no duty to reveal their government affiliation, regardless of whether they are speaking with a suspect, a witness, or a confidential source.”
• Police Deception and Entrapment: “In the context of the criminal justice system, police deception is generally insufficient, on its own, to support a claim of entrapment. To support an entrapment defense, an individual must show that the federal law enforcement agents induced the criminal offense.”
• State v. Cayward, 552 So. 2d 971 (Fla. 2d DCA 1989), 552 So. 2d 971 (Fla. 2d DCA 1989): “In State v. Cayward, 552 So. 2d 971 (Fla. 2d DCA 1989), 552 So. 2d 971 (Fla. 2d DCA 1989), the Florida Supreme Court rejected a law enforcement officer’s fabricated laboratory report as a witness’s prior statement. This was under the state’s rules of evidence, which differ from the rules of evidence applied in federal courts.”

When Does an Agent’s Lie Make My Statement Involuntary?

In Frazier v. Cupp, the U.S. Supreme Court upheld the results of an interrogation after law enforcement officers falsely told a suspect that one of his accomplices had already confessed. However, this quote is slightly misleading in isolation. Courts generally evaluate the involuntariness of a confession under the “totality of the circumstances,” and they will consider all relevant factors when making an assessment. These include:

• Speaker’s age, intelligence, and psychological condition;
• Length of interrogation;
• Use of physical restraint;
• Use of threats or promises.

Deception becomes unconstitutional when combined with other tactics to overbear the speaker’s free will. In other words, the suspect’s confession must be product of these other tactics and not a result of the deceptive interrogation tactic itself. These other tactics could include, but are not limited to:

• Threats of physical violence or loss of job/money;
• Threats of extended detention or incarceration;
• Improperly using threats of prosecution against the suspect’s spouse, children, or parents;
• Forcing the suspect to remain in a stressful environment or in a physically unpleasant position.

The following deceptive interrogation tactics are common and generally have the following effects in criminal investigations:

• Falsely claiming that fingerprints, DNA samples, audio or video recordings, or documents confirm the suspect’s guilt.
• Falsely claiming that an innocent person has confessed or confessed to a different (but still related) crime.
• Falsely claiming that the suspect has been identified by an eyewitness or witness (or witnesses).
• Falsely claiming that another suspect has confessed to the crime.
• Falsely claiming that the investigator has a search warrant or is in receipt of incriminating evidence from a search warrant.
• Falsely claiming that the suspect will be charged with a crime for the investigation under discussion or a different crime.

Under the Fifth Amendment, “To support a claim of an involuntariness due to a violation of the Due Process Clause of the Fifth Amendment, the defendant must show that ‘the state’s coercive conduct has overborne his will to such an extent that the state’s conduct is the actual cause of the defendant’s statement.’” If a suspect’s statement isvoluntary, he or she cannot attack the statement’s admissibility on due process grounds.

• Frazier v. Cupp did not categorically authorize every deceptive interrogation tactic.
• As a result, some deceptive interrogation tactics can trigger an involuntariness finding.
• False claims about legal consequences can contribute to an involuntariness finding.

All of these factors are part of the “totality of the circumstances” analysis. To avoid making a statement that can be used against you in court, talk to an attorney before you talk to the federal government. Your attorney can determine whether talking to the government is in your best interest, and if so, how it should be done.

When Must Federal Agents Read Me My Miranda Rights?

Miranda warnings are required before custodial interrogation. This has various implications in the context of federal criminal investigations.

1. Interrogations Conducted Before an Arrest

Interrogations conducted before an arrest are ordinarily noncustodial, and federal agents ordinarily will not provide Miranda warnings during noncustodial interviews. However, if it becomes clear that the person they are interviewing is in Miranda custody, federal agents must read him or her Miranda warnings.

2. Miranda-Defective Statements

If you spoke with federal agents voluntarily but your Miranda rights were not read (or you were not advised of your right to remain silent), federal prosecutors cannot use your voluntary but Miranda-defective statement in their case-in-chief. However, if you testify at trial, prosecutors can use your voluntary but Miranda-defective statement to impeach you. If the statement was voluntary, it is otherwise inadmissible.

3. Miranda Warnings and Coerced Confessions

Miranda warnings do not make a coerced confession constitutionally voluntary. While failure to provide Miranda warnings will result in the exclusion of the confession from a prosecution’s case-in-chief, providing Miranda warnings will not make the confession admissible if it was obtained through other unconstitutional or otherwise improper means.

4. Miranda Custody

Miranda custody is different from actual custody. To establish Miranda custody, a suspect must show that he or she was subjected to restraints at the time of the interrogation that were comparable to those of a formal arrest. When deciding whether a suspect was in Miranda custody, courts consider all relevant circumstances.

5. Execution of Search Warrants

The execution of a search warrant does not automatically make all occupants Miranda-custodial. While the subject of the search warrant will likely be in Miranda custody, other occupants are typically not. However, once the subject of the search warrant has been mirandized and is cooperating, federal agents may use him or her as an interpreter or to help interview other occupants. The others will likely remain not in custody for the purpose of Miranda.

6. Routine Border Interrogations

Interrogations performed at international airports and other international borders are typically not custodial interrogations for Miranda purposes. Routine questions about travel and the nature of the trip to the United States do not have to be accompanied by Miranda warnings, unless they are custodial interrogations focused on a potential criminal offense.

Will Asking for a Lawyer Make Federal Agents Stop Questioning?

1. Invoking Your Miranda Rights in Custody

To receive the right’s full protection, you must unambiguously invoke your Miranda rights. “Would it be okay to talk to a lawyer?” does not clearly invoke your Miranda rights. Instead, an invocation must clearly express your intention to speak to a lawyer.

In Edwards v. Arizona, 451 U.S. 477 (1981), the U.S. Supreme Court held: “Once the suspect has clearly requested counsel, law enforcement officials cannot re-approach him until counsel has been made available to him, unless the suspect himself re-initiates communication.”

2. Precharge Noncustodial Interrogations (Interviews)

In these cases, usually the Edwards rule does not apply. Asking to speak to a lawyer should make it very difficult for the government to question and use statements in future proceedings, but it will not necessarily end the interview.

3. Precharge Voluntary Silence

In Salinas v. Texas, a plurality of the U.S. Supreme Court concluded that “an individual’s silence is only protected by the Fifth Amendment if he or she has invoked his or her rights.” Because the suspect’s silence was prearrest, pre-Miranda warning, and he or she had not yet invoked her Miranda rights, her silence could be used against her. However, as the court noted: “A suspect’s voluntary silence before receiving Miranda warnings is unconstitutional to use as a prosecution tool only if the silence would be inadmissible even if the suspect were mirandized.”

4. Re-Interviews and Precharge Noncustodial Interviews

When talking with someone who is not under arrest, the Miranda-Edwards rule does not require federal agents to end the interview. The agents can continue to question the person even if he or she asks for a lawyer. It is highly unlikely, however, that this would be advantageous for the government in the long run.

5. Appointed Counsel

The government generally will not appoint counsel for anyone who has not been arrested or indicted. While those who have been arrested or indicted will be eligible for government-appointed counsel, those who are in noncustodial interviews (even if it is for a pre-arrest interview) must either hire an attorney out of their own pocket or forego their right to counsel.

6. Implicit Waivers

In Berghuis v. Thompkins, the U.S. Supreme Court held that invoking your Miranda right to remain silent must be unambiguous. Silence alone is not an invocation of the right to remain silent. When a suspect is read their Miranda warnings and speaks to federal agents, that suspect has implicitly waived his or her right to remain silent. In other words, answering the question after hearing the Miranda warning counts as an implied waiver. The prosecutors then can use this implicit waiver to prove that you had no reason not to speak with federal agents.

Spodek Law Group, led by managing partner Todd Spodek, defends clients in federal criminal and white collar matters.

Can I Be Charged for Lying Back to Federal Agents?

18 18 U.S.C. Section 1001 is a federal criminal statute that criminalizes making specified false statements that are related to federal matters. With it, federal law enforcement has obtained the power to hold individuals criminally liable for “providing false statements, concealing material facts, or creating false documents during a federal investigation.” The federal crime of providing false statements is an unusual offense. While most false statements will not trigger federal criminal penalties, statements that meet specific criteria under Section 1001 trigger liability. In other words, for a defendant to be liable under Section 1001, the following are needed:

• Falsity: To be liable under Section 1001, the individual must have spoken something that was false. As a result, if the answer provided to federal agents was literally true, it cannot satisfy Section 1001’s falsity element.
• Knowledge: The individual must have known that the statement was false. In other words, an honest mistake, faulty memory, or misunderstanding of the question would prevent a Section 1001 violation.
• Willfulness: The individual must have intentionally provided a false statement.
• Materiality: The false statement or withheld information must have been material to the federal investigation. When determining materiality, courts ask whether the false statement or withheld information had the potential to influence governmental decision-making. If it had the potential to influence the agents’ investigation or the agency’s decision-making, then the statement is material.

False statements can take various forms. According to Section 1001, this includes:

• Falsifying identity or misidentifying any individual;
• Falsely reporting or concealing a material fact in connection with an audit, investigation, or federal program;
• Falsifying, distorting, or concealing records, documents, reports, or summaries;
• Using false identities, claiming to be someone else, or denying one’s own identity in a manner that results in a false report;
• Using false titles and certificates in relation to federal programs.

Section 1001’s implications are far-reaching. Importantly, Section 1001 applies not only to documents signed under oath but also to oral statements. Even without any formal oath, providing false statements or concealing facts during a federal investigation can be a crime. Section 1001 is commonly used as a way to leverage suspects into cooperation. For example, if you cannot be proven to have committed a federal crime, prosecutors may try to prove that you committed the separate federal crime of making a false statement during your initial interview. Section 1001 violations generally carry a maximum prison term of five years, which rises to eight years if the offense involves domestic or international terrorism or relates to certain sex offenses. In Brogan v. United States, the U.S. Supreme Court rejected the notion that suspects have a right to give an “exculpatory no” in order to protect themselves against allegations of criminal activity. With this ruling, any false answer to any question posed by federal law enforcement agents can lead to criminal liability. While it can be challenging to avoid liability if you refuse to speak with federal agents, it is always possible to fight them in court. The knowledge requirement of Section 1001, the materiality requirement of the statement, and the fact that an answer may be literally true may all be adequate defenses in a federal criminal investigation under Section 1001.

Can My Federal Criminal Defense Lawyer Lie for Me?

ABA Model Rule 4.1(a) states that “In the course of representing a client, a lawyer shall not knowingly make a false or misleading statement of material fact to others.” State rules on professional conduct for attorneys are often modeled after the ABA’s Model Rules, and they adopt the ABA’s language wholesale. As a result, lawyers are forbidden from lying about material facts to opposing counsel or prosecutors. When state rules adopt the ABA’s language, they will say (about the duty of confidentiality) that “a lawyer shall not disclose information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or disclosure is compelled by law.” As a result, your federal criminal defense attorney is usually required to either answer a question truthfully or refuse to answer based on his or her duty of confidentiality. The ABA Model Rule 3.4(a) prohibits counsel from doing certain things as well. For example, Rule 3.4(a)(ii) prohibits counsel from “falsifying evidence, concealing, or altering documents, or otherwise unlawfully obstructing another party’s access to evidence.” In turn, Rule 3.4(a)(iii) says that “a lawyer shall not advise a client to engage in such conduct.” Rule 3.3 also says that “a lawyer shall not knowingly make a false statement of fact or law to a tribunal, or knowingly offer evidence that the lawyer knows is false.” Additionally, under Model Rule 1.2(d), “a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.” If the attorney knowingly assists a client to commit a criminal or fraudulent act, that attorney will face professional sanctions under Rule 8.4(c). Rule 8.4(c) says that “It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” At any point during the negotiation process, negotiation estimates and conventional puffing are generally not treated as factual representations.

Wait- a fraud, a lie, a misstatement of fact, or a false representation is a different thing. Generally, this is not covered by the rules above. This is usually a part of any adversarial negotiation.

What Should I Do When Federal Agents Request an Interview?

Federal investigators will do a lot of their own investigations before interviewing suspects or witnesses. Frequently, their questions focus on details that they have independently corroborated. While this means they may be acting from a position of knowledge rather than seeking knowledge, answering a question with a known-answer is not a crime. However, knowingly providing a false response to a known-answer question can create separate criminal exposure in many circumstances. If you’ve spoken to federal agents, you must disclose the content of that communication to your lawyer so your lawyer can assess whether you are at risk for a Section 1001 violation.

Federal agents typically use FBI Form FD-302 to document their interviews. However, unlike many formal law enforcement procedures, the FD-302 does not serve as a transcript of the interview. Instead, it serves as a summary of the interview as perceived by the federal agent, and interviewees will not typically review or sign an FD-302 report.

The purpose of hiring a federal criminal defense attorney is to ensure that you can maintain control over the information provided to the federal government. Once you hire an attorney, your attorney can speak with the federal investigators about the nature of the investigation, the reasons you are being asked to interview, and other information your attorney can learn about the federal government’s case, without exposing you to direct questioning.

With regard to federal policy for recording interviews and interrogations, the Justice Manual section 9-11.100 establishes a presumption in favor of recording “custodial interrogations in a place of detention.” “While the Justice Manual establishes a presumption of recording, it also identifies circumstances under which recording may be unnecessary or unsuitable.” DOJ’s policy also contains additional exceptions, so federal investigators will not record every interview they conduct in a place of detention. Additionally, DOJ recording policy does not cover noncustodial interviews.

While federal law enforcement agents may be willing to explain your role in the investigation, they generally do not have to disclose whether you are a witness, subject, or target. Regardless of whether you are a witness, subject, or target, you still have the right to speak with counsel, as this right is not confined only to those who have been arrested. If you do have an attorney, your attorney can speak with investigators before you make any communication with the federal government.

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 212-300-5196 to speak with our team.