Michigan has joined a minority of states by passing a law that makes it a crime to “make a material misrepresentation of fact during a criminal investigation”. Never mind that there are already laws on the books to deal with this subject. Never mind that this is clearly a “solution in search of a problem”. Never mind that police officers can legally lie to citizens, with absolute impunity, during police investigations.
The new law makes it a crime to:
Conceal from the peace officer (by any trick, scheme, or device) any material fact, or make any statement to the peace officer that is false or misleading regarding a material fact, or issue or provide any writing or document to the peace officer that the person knows is false or misleading regarding a material fact.
Unfortunately, “material fact” and “misleading” are not defined in the law, which gives police officers unbridled discretion to basically do what they wish. It turns police officers into human lie detectors. Imagine the circumstance where an officer pulls someone over for drunk driving and the motorist tells the cop he drank “two beers” (according to most officers, this is by far the most common response to the question “how much have you had to drink tonight?”). The officer arrests the person and gives them a breath test, the results of which clearly show the person drank more than two beers. Now the poor soul is not only facing drunk driving charges, but also charges of lying to the police officer. Or take the situation where the police are called to the scene of a domestic violence complaint. They interview both parties and, based on the statements given, arrest the boyfriend because they believe the woman over the man. Now the man faces two charges; domestic violence and lying to the police. (Strangely, the new law exempts false statements by crime victims!) The potential for abuse of this law by the police is enormous. Citizens and courts will have to rely on prosecutors ferreting out those circumstances where the spirit of the law has been violated in order to avoid serious injustices from the application of this statute.
What many find offensive about the current state of the law is that police officers can lie to citizens without any sanction. This runs afoul with the notion that the police are sworn to uphold the constitution and that we expect them to be honest and we expect them to have integrity as well. Yet an officer can lie to a scared teenager and say things like “we have you on video” or “your friend already told us you did this” or “we have your fingerprints at the scene” or “we have you DNA” in order to secure a confession. This is just plain wrong. The number of DNA exonerations stemming from false confessions is staggering. Surprisingly, prosecutors have no problem with officers lying to citizens during an investigation. Their “yeah, so?” response to this practice is quite disconcerting. We were all raised to trust Officer Friendly but this phenomenon undermines that basic trust.
The new law does not prohibit a person from declining to speak to or otherwise communicate with a peace officer concerning the criminal investigation. This of course requires lawyers to tell every law abiding citizen they know that:
in Michigan a new law says that a police officer can lawfully arrest and prosecute you if he/she is conducting an investigation and decides you have said something that is not true or something he thinks is misleading, even though it’s not. Therefore, to avoid being arrested and prosecuted, you should memorize this statement and just say this if questioned by a police officer about anything:
“Officer, I do not mean to be rude or disrespectful; but Michigan law says if I talk to you, and you think I am lying, you can arrest me; so I do not wish to talk to you.” Citizens: Memorize this statement and make it your mantra; Repeat this statement over and over again, as many times as necessary, to every subsequent comment or question made by the officer, including statements such as “I am not going to arrest you.” Do not allow yourself to be cajoled or intimidated into saying anything else; or you risk being arrested and prosecuted.
It’s a sad day that we can no longer talk to Officer Friendly without fear of arrest.