Fabrication and Misrepresentation of Evidence


Fabrication and Misrepresentation of Evidence
The frustrations and failures of attempts to gather sufficient evidence against suspects
inevitably provides the temptation to take shortcuts or to fill in the gaps through
fabricating evidence. For example, though deceiving suspects in undercover operations
is legally permissible, and arguably ethical, some practices cross the line to intentionally
mislead attorneys, judges and juries who try and judge the suspects. Undercover
officers often surreptitiously record suspects in order to document incriminating activities
and admissions. If they have difficulty getting sufficiently incriminating statements on

they may engage in deceptive practices to nevertheless give the appearance that
suspects have self-incriminated. For example, the officer may talk about a crime that
has taken place or that is being planned as if the suspect is still present when, unknown
to the audience, he has actually left the room or walked out of earshot. The silence
following the agent’s taped statements can be considered “adoptive admissions” of guilt
on the part of “silent” suspects. An agent may talk about picking up some “speakers” (a
term dope dealers sometimes use to refer to drugs) with a suspect that understands the
term to mean audio-speakers. If the suspect agrees to pick them up,

 observers can later
be misled to assume he knew the term referred to drugs. Additional strategies used by
undercover agents to artificially convey the notion that targets have been involved in
criminal activities include destroying or tampering with tapes (e.g., introducing static to
obscure parts of the discussion inconsistent with suspect guilt), interrupting or speaking
on behalf of suspects, withholding information from suspects that would clarify what was
being talked about (and perhaps lead to suspect denials), and outright scripting
suspects so that the target audience ends up hearing, in sum, a recorded full confession
in suspects’ own words.
Another of the few contexts in which deception is discouraged involves testifying
in court settings. Research suggests, however, that some officers do cross this line.
Encyclopedia of Lying and Deception
The term “testilying” was coined by New York City police officers to refer to “justified”
perjury—ranging from lying about the circumstances surrounding a particular event to
outright planting evidence at crime scenes—in a presumed effort to distinguish the
practice from inexcusable dishonesty. Indeed, many officers who do lie under oath
argue that such “testilying” is justifiable, since it serves a greater good. That is, some
accept testilying as a way to achieve the goals of justice, even if accomplished through
questionable, and perhaps illegitimate, means. Testilying is believed to be most
frequently used to prevent the acquittal of guilty defendants. Indeed, it has been
speculated that one reason officers resort to lying during investigative, pretrial and trial
proceedings, is their widespread belief that they are much more skilled at identifying
suspects’ culpability than judges, juries, and prosecutors. Therefore, it is up to officers
themselves to ensure that guilty suspects are not wrongly released, through false
testimony if necessary.

 Other personal reasons why officers sometime resort to
testilying are 1) attempts to cover up their own incompetence or participation in
corruption or other illegal activities; 2) monetary gains, such as overtime pay obtained
from the extra time it takes to process arrests and testifying in court; and 3) personal or
departmental goals to increase conviction rates.
In summary, lying and deception among law officers is legally sanctioned and widely
considered to be necessary for effective evidence gathering: though all such deceptive
practices are criticized by some as unnecessary, ineffective, counterproductive and/or
simply unethical-- inevitably leading to inaccuracies, injustices, and even corruption.
Establishing the legal and ethical boundaries of morally-questionable law enforcement
practices is a complex endeavor, as it involves weighing goals of efficiency against
principles of justice.
J. Guillermo Villalobos
University of Nevada, Reno
Michael J. Williams
University of Nevada, Reno
Deborah Davis
University of Nevada, Reno
See Also: Self-Justification; Deception Motives; Justice; Lying: Accusations; Morals and
Ethics; Perjury.

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