Susan R. Klein (University of Texas School of Law) has posted Lies, Omissions, and Concealment: The Golden Rule in Law Enforcement and the Federal Criminal Code (Texas Tech Law Review, Forthcoming) on SSRN. Here is the abstract:
This essay was written by a symposium at Texas Tech School of Law devoted to the topic of Citizen Ignorance, Police Deception, and the Constitution. My panel was tasked with tackling two related questions: (1) Do we want citizens to know their rights? and (2) How do we inform them? I attempt to answer these questions, and flesh out a federal theory of deception, by comparing and contrasting the federal constitution’s requirement of honesty by law enforcement, prosecutors, and judges during encounters between the government and its citizens with the federal criminal code’s requirement of honesty by citizens and public officials during encounters between these citizens and law enforcement, prosecutors, and judges. It appears that the standard of behavior the federal government expects from its citizens in order to avoid violating the federal criminal code is perhaps greater than it expects of its law enforcement personnel in order to avoid violating the federal constitution. In Part I, I provide a brief description of constitutional regulation of citizen-police encounters, focusing on the difference between lies and omissions or concealment, and on the level of honesty that is required in different locations. For example, there is no constitutional or statutory impediment to lying to a citizen during a sting operation. A much higher level of disclosure is required by the government in order to obtain a suspect’s waiver of constitutional criminal procedural guarantees in the trial context than during street encounters. Furthermore, there is some disclosure of the ramifications of waiving trial rights that a federal judge must relay to a criminal defendant during a Rule 11 guilty plea colloquy.
In Part II, I review select portions of the federal criminal code, particularly Perjury under 18 U.S.C. section 1621, False Statements under 18 U.S.C. section 1001, Obstruction of Justice under 18 U.S.C, sections 1505, 1512, and the Mail and Wire fraud statutes, U.S.C. section 1341 and 1343. I will focus here on the differing government expectations regarding direct falsehoods versus concealment or failure to disclose material information. Finally, in Part III, I draw possible analogies between the level of honesty the federal government demands from its citizens upon pain of criminal sanction and the information it provides to criminal suspects, usually upon the risk of evidentiary exclusions at criminal trials or the possibility of monetary damages in civil rights actions. I conclude that there are significant differences in the level and types of honesty that the federal government expects from its citizens compared to its official treatment of these same citizens, and that the Court lacks a theory of honesty sufficiently coherent to justify this violation of the Golden Rule. The government does not treat its citizens the way it expects to be treated in return. I will conclude by suggesting the development of a federal theory of deception, provided by the government ex ante, that would consistently apply across various contexts.
Highly recommended!