Deceit in Defense Investigations

Prosecutors and police routinely employ misrepresentation and deceit in undercover investigations. In cases ranging from drug distribution, prostitution, and sexual misconduct with minors to organized crime and terrorism, police and those cooperating with police deceive suspects and their cohorts about their identities and their intentions in order to gain information to help uncover past crimes and thwart future crimes. Frequently, such deceit helps reveal the truth about what criminals do and think.

May defense lawyers and investigators working for them employ similar tactics? Or should prosecutors be the only lawyers allowed to direct and supervise investigatory deception? In recent years, both debate and a divergence of views on this question have emerged. In this column we examine that debate, the arguments raised on both sides of it, and how various jurisdictions have answered this question.

The Deceit Conundrum

Consider the following facts based on a recent case. A lawyer's client is charged with possessing child pornography on the client's work computer and forcing a 12-year-old complainant to view that pornography. The client and complainant were acquainted through a mentoring program and the complainant often spent time at the client's place of work. The complainant knew the client's computer password and offered to show the investigating officer the location of the pornographic images.

The lawyer learns that the complainant has a history of both false sexual allegations and accessing pornography on the Internet. The lawyer strongly suspects the complainant rather than the client accessed and placed the pornography on the client's computer. The lawyer wants to inspect the complainant's home computer for similar pornography, which would help exculpate the client by suggesting that the complainant rather than the client was responsible for the pornography on the client's computer. The lawyer fears that to ask directly, though, will prompt the complainant to destroy any pornographic images on the home computer.

The lawyer comes to you for advice. The lawyer wants to hire a private investigator to gain access to the complainant's computer through deception. The private investigator would pose as a computer consultant, contact the complainant's family, claim to be conducting a survey of computer use by young people, and offer to swap the home computer for a new laptop computer that would purportedly allow the...