Mary D. Fan, The Police Gamesmanship Dilemma, 44 U.C. Davis L. Rev. 1407 (2011), https://digitalcommons.law.uw.edu/faculty-articles/117
U.C. Davis Law Review
constitutional criminal law, police procedures
Police gamesmanship poses a recurring regulatory challenge for constitutional criminal procedure, leading to zigzags and murky zones in the law such as the recent rule shifts regarding searches incident to arrest and interrogation. Police gamesmanship in the “competitive enterprise of ferreting out crime” involves tactics that press on blind spots, blurry regions or gaps in rules and remedies, undermining the purpose of the protections. Currently, courts generally avoid peering into the Pandora’s Box of police stratagems unless the circumvention of a protection becomes too obvious to ignore and requires a stopgap rule-patch that further complicates the maze of criminal procedure. The doctrine leaves murky the line between fair and foul play and sends an implicit message to the police to game covertly. A clearer understanding of this opaque zone of intense pressures and the police gamesmanship dilemma is needed in order to better define and foster fair play and ameliorate rule strain. This Article takes up the task. [para] The Article offers a taxonomy of the three main forms of problematic police gaming. The Article also proposes anti-gaming standards and data-development remedial rules to help inculcate and enforce fair play values and address rule subversion and strain. The 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. Conduct rule gaming involves end-runs around the rules telling police how to behave to subvert the purpose of the rules, such as sending suspects abroad for violent interrogation or asking questions first, then administering a Miranda warning later. Remedial rule gaming takes advantage of gaps in rules telling officials how to remedy violations, such as the “standing” doctrine. Framing rule gaming exploits decision-framing doctrines telling courts how to address violations, such as averting judicial review by drawing on doctrines of deference and noninquiry.[para] The Article argues for two approaches that would facilitate fairer play, 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. [para] The Article proceeds in five parts. Part I analyzes the problematic message constitutional criminal procedure sends to police about playing fast, hard, and aggressively and the difficulty with doctrinal ambiguity and ambivalence about the line between fair and foul play. Part II analyzes how constitutional criminal procedure tries to calibrate a balance between police power and liberty through rules impeding police efficiency, leading to further pressure to game the rules. Part III lays the foundation for confronting and addressing problematic police gaming by defining the line between fair and foul play and offering a taxonomy of the three main modes of problematic police gaming. Parts IV and V argue that the time is right for reorienting constitutional criminal procedure in this period of foment to address the police gamesmanship problem through anti-gaming standards and data-development remedial rules.