It is well-known that undercover investigations influence and sometimes distort the crimes they seek to expose. This is the problem which the entrapment defense is designed to address. What has not yet been recognized, however, is that the investigator's influence on crimes is also a problem of evidence. This Article notes that undercover policing can be used to prove crimes that the investigator influences (which I term "contrived offenses") as well as crimes that occur independently of the government's intervention (what I call "independent crimes"). The ease of documenting the former tempts investigators to forego the arduous task of proving the latter. Yet the same evidence that proves a contrived offense may also corroborate an independent crime. This Article argues that contrived offenses are at best proxies for the independent crimes which legitimate the investigation. And because of the investigator's influence, contrived offenses are inherently flawed substitutes for independent crimes. Invoking best evidence principles, this Article argues that the rules of evidence should be reformed in ways that will motivate prosecutors to put evidence of contrived offenses to its best use: proving independent crimes.
Jacqueline E. Ross,
Valuing Inside Knowledge: Police Infiltration as a Problem for the Law of Evidence,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol79/iss3/29