Subterfuge, a Constitutional Value?
rs at robertsheridan.com
Fri Jan 22 12:15:47 PST 2010
The scene: A packed seminar on "Ethics for Criminal Defense
Attorneys." Hold the jokes, please...
The question posed by the moderator: Your client is accused of
committing an offense and the accuser is learned to be an active
participant in an on-line chat site. May your investigator enter the
Internet site using an assumed name, i.e. a false identity, in order to
chat up the accuser in order to find information to impeach his/her
Members of the audience respond that this is not a good idea.
Moderator suggests that the answer to the question is to be found in
*California Penal C. Sec. 1054.8*, stating that this statute provides
that /defense/ investigators are required to properly identify
themselves before questioning a witness.
Seems quite right, yet this is bothersome. Why should the police be
allowed to lead lives of fiction while operating undercover to get the
bad guys, but not private investigators?
In response to this conundrum, a list participant stands up and makes
the following pronouncement:
*"I would raise the question as to whether Section 1054.8 is
constitutional, on the theory that if law enforcement is entitled to
use deception to /detect /crime, then why shouldn't a private
investigator be permitted to use deception to /prevent injustice/?"*
Sitting back down, a few laughs are heard.
Then, just about everyone bursts out laughing, followed by..., what's
People are clapping, a few at first, then generally.
This roomful of experienced defense attorneys is applauding a /legal/
formulation and we all smile.
Constitutional law is alive, in the here and now!
It was gratifying to witness, indeed participate in, this Conlaw moment,
an unaccustomed reception for a modest Conlaw query, and I thought I'd
share it with you.
Later review of the statute shows that investigators for /both sides/,
prosecution and defense, are required to identify themselves properly
when interviewing witnesses.
Yet the question persists and brings to mind that the entrapment cases
presuppose undercover police work, i.e. subterfuge, and FA cases such as
the Pentagon Papers (theft of government documents) case and Bartnicki
v. Vopper (illegally recorded cellphone conversations on an issue of
public importance) recognize protection of publication of illegally
obtained information, despite the illegality.
What do you think? Might there be circumstances where Cal. Penal C.
Sec. 1054.8 unconstitutionally restricts the fair trial and effective
counsel rights of the criminally accused? Due process? Equal protection?
Suppose you have good reason to believe that the complaining witness has
perjured herself and your client is being framed?
Use subterfuge to detect this crime?
Is subterfuge restricted only to law enforcement?
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