Please discuss the ethical issues involved with or for detectives who go deep undercover in order to catch criminals. Are they held accountable if they have to break the law for the sake of an investigation?
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The short answer is that, yes, law enforcement officers working undercover, for example, to infiltrate organized crime or a drug trafficking ring, are accountable for infractions of the law perpetrated in furtherance of a criminal investigation. That is the reason government attorneys, including prosecutors, are included in the planning of many deep undercover operations, and are frequently consulted throughout the actual investigation. It is vitally important that the undercover officers know the legal boundaries beyond which they are not permitted to go, and to alert their superiors as soon as possible when confronted with situations in which violations of the law may occur. Obviously, such “in-the-field” consultations are not always easy when the undercover operation involves criminal organizations in which participants or members remain physically close for much of their lives. Law enforcement officers who successfully penetrate outlaw motorcycle gangs (OMGs), such as the Mongols, Hells Angels, Pagans, or any of the other such groups that routinely engage in criminal activities, are in a particularly precarious position because of the nature of those types of organizations. Members of OMGs don’t live together seven-days-a-week, 52-weeks-a-year, but they come close, spending almost all their time together. Making contact with one’s superiors for the purpose of consulting about potential violations of the law – and undercover officers who have penetrated OMGs are expected by the leaders of those gangs to participate in unlawful activities, especially if the officer succeeds in being “patched in” to the gang (i.e., made a formal member of the gang) -- can be enormously difficult, as any mistake can prove fatal.
While law enforcement officers are held accountable for violations of the law, it is not always an open-and-shut matter. The law encompasses a broad level of activity, and the concept of “criminal intent” is a major factor in whether to prosecute such transgressions. There is no question that occasional blurring of the lines occurs, whether to protect the investigation or to protect the life of the undercover operative. Minor violations, taken in context, can be resolved without jeopardizing the investigation, as the office of the prosecuting attorney ultimately makes the decision on whether to prosecute officers involved in undercover work, and that office is, as noted, frequently consulted anyway. Prosecutors tend to be extremely nervous, though, that any violation of the law by law enforcement officers working undercover can jeopardize the criminal case when it goes to court. Part of every criminal trial is the “discovery” phase, during which the prosecutor is required to share all evidence accumulated during the course of the investigation with the defendant and his or her attorneys. The government, for whom prosecutors work, is always wary of having to share information with defense attorneys that includes even minor violations of the law by the investigating officers. Such disclosure, it is feared, will undermine the credibility of the government’s witnesses, especially that of the now-formerly-undercover officer.
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