Wanting the Truth: Comparing Prosecutions of Investigative and Institutional Deception

Defensive dishonesty in criminal investigations has increasingly been prosecuted without standards for identifying harmful deception or other meaningful checks on prosecutorial discretion. Although they are often grouped together statistically and evaluated as comparable crimes, there is a clear distinction between investigative lies and in-court perjury. The differences between the offenses—including the standards for prosecution, the perceived victim, and the purposes of bringing charges—suggest reasons to reconsider the current approach to investigative lies such as false statements. More truth is produced, and arguably more cooperation results, when the government focuses on the quality of the information flow. The structural protections in place with regard to institutional perjury can be explained in part as truth-seeking tools, and I propose translating warning requirements and distinctions between active and passive lies into the context of investigative deception. Efforts to get accurate information could more effectively curtail evidentiary foul play than strategies designed just to get defendants. And being attentive to whether a false statement actually causes harm—a mitigating principle seemingly at work in the perjury context—might further optimize deterrence.