Since time immemorial human society has been in need of a power which would carry out control over it and prevent crime, punishing the culprit in case of offence. Nowadays this function is performed by the system of criminal justice which comprises police, as a means of law enforcement; courts, as organizations carrying out adjudication; and jails, prisons, probations and parole as kinds of corrections. Criminal justice agencies, which are represented by the police investigating crime, and the attorneys prosecuting the offenders, are expected to operate within the rule of law. However, it is not infrequent that while rendering justice, the aforementioned agencies happen to involve in certain ethical issues in cases leading to miscarriage of justice. It is the goal of the present paper to review such areas of ethical issues within the field of criminal justice as: pretexting during investigation and police misconduct, and their influence on the investigated case.
When investigating a crime, it is often the case that certain information is obtained via pretexting — a trick which is described by Hartwell (2006) as “obtaining information through deception or false pretence”. The participants of pretexting misinterpret their identities or purposes in order to get information which otherwise might have not been revealed to them. Another case could be when a lawyer leading the case hires a third party to obtain evidence — such a party is called an “undercover investigator” (Hricik, 2007). On the whole, such techniques can help in advancing the investigation process and have proved to be successful. However, conducting a case with the use of pretexting and undercover investigators can raise a whole range of ethical issues and question the lawfulness and compliance of actions directed at obtaining information. There exists a set of Model Rules of Professional Conduct drawn up within the American Bar Association (2008) which can be used as guidelines in planning a proper investigation despite their inability to settle all the issues which might rise in course of the case. Otherwise there is a possibility of a retaliatory lawsuit alleging, inter alia, fraud and trespass.
Another slippery ground in the course of investigation concerns the limits of police authority when carrying out their duty. There are frequent reports of police misconduct, with the most common claims brought against police officers being false arrest (or false imprisonment), malicious prosecution, and use of excessive or unreasonable force. According to the US Department of Justice (2008).
“It is a crime for one or more persons acting under color of law willfully to deprive or conspire to deprive another person of any right protected by the Constitution or laws of the United States. … The types of law enforcement misconduct covered by these laws include excessive force, sexual assault, intentional false arrests, or the intentional fabrication of evidence resulting in a loss of liberty to another”.
As a rule, it is quite impossible to prove police misconduct since there exists a code of non-disclosure among the police officers involved in a case of exceeding power. Moreover, occurrences of police officers giving false testimony in court have been discovered. Authoritative press editions report cases when surveillance cameras records helped to discover the true course of events, and consequently charges against innocent people were dropped (Hauser, 2009).
In all the diversity of investigation cases, there cannot be one single valid and true answer to satisfy all of the ethical issues. Thus it is important to involve the principles of ethical pluralism, enlisted by Hinman, to resolve conflicts of different ethical standards. Those are the principles of Understanding, Tolerance, Standing Up Against Evil, and Fallibility (as cited in Banks, 2004). An in-depth understanding of each particular case is vital before applying any ethical standards to its resolution.
References
- American Bar Association. (2008). Model Rules of Professional Conduct.
- Banks, C. (2004). The Importance of Ethics in Criminal Justice. In Banks, C. Criminal Justice Ethics :Theory and Practice (pp. 3-17). London: Thousand Oaks: New Delhi: SAGE Publications, International Educational and Professional Publisher. Web.
- Hartwell, R. V. (December 2006). Compliance and Ethics in Investigations: Getting It Right. The Antitrust Source, 6 (2).
- Hauser, C. (March 25, 2009). When Evidence From Surveillance Cameras Leads to Charges Against Officers. The New York Times. p. A30.
- Hricik, D. C. (2007). Conflicts and Confidentiality: The Ethical and Procedural Issues Concerning Experts. Macon, GA: Mercer University.
- United States Department of Justice: Civil Rights Division. (2008, July 25). Addressing Police Misconduct: Laws Enforced by the United States Department of Justice.
Outline
I. INTRODUCTION
- Thesis: certain ethical issues during crime investigation may lead to miscarriage of justice
II. BODY PARAGRAPH I
- Transition/Opening Sentence: lawyers often obtain information via detours
- Detail 1: pretexting
- Detail 2: undercover investigating
- Detail 3: a set of rules to rely upon when choosing an investigation strategy
III. BODY PARAGRAPH II:
- Transition/Opening Sentence: the police often trespass the limits of their authority when enforcing law
- Detail 1: kinds of police misconduct
- Detail 2: impossibility to prove law enforcement misconduct
- Detail 3: improving the situation due to surveillance cameras records
VI. CONCLUSION
- Reconfirmed Thesis: when handling controversial ethical issues in sphere of criminal justice, principles of ethical pluralism should be used