The Police Gamesmanship Dilemma in Criminal Procedure

Abstract

The polity and the law send police mixed messages about the desirability of police gaming the rules of criminal procedure. On the one hand, we desire vigorous policing and envision that to combat criminals who play dirty, police may have to get in the mud too. On the other hand, the law and the courts prescribe a phalanx of protections and efficiency-impeding rules to restrain overly aggressive play. This article is about this opaque zone of intense pressures and the police gamesmanship dilemma. The article examines when gamesmanship becomes problematic and how the law can better inculcate and enforce fair play values and address rule subversion and strain. The article's taxonomy distinguishes between desirable police innovation and problematic rule subversion and divides problematic police gaming into three variants: conduct rule gaming, remedial rule gaming and framing rule gaming.

The article argues for two approaches that would facilitate fairer play and improved monitoring and internalization of rule-abiding behavior and norms by the police. First, the Article argues for deploying anti-gaming standards to supplement bright-line rules on issues where the incentive to game is high because the potential evidentiary payoff is direct. Second, the article argues for reorienting the predominant remedial approach to incorporate data-development remedies that surface problems sooner and give police incentive to cooperate in monitoring and reform.

Keywords: Police Gamesmanship, Trickery, Interrogations, Search and Seizure, Arizona v. Gant, Davis v. United States, Maryland v. Shatzer, Missouri v. Seibert, Rule-Pushing, Remedies, Policing, Profiling, Arar v. Ashcraft, El-Masri v. Tenet, Civil Suits, Extraordinary Rendition, Extraordinary Rendition