Tagged: United States

International Legal Ethics Conference: Ethics in Criminal Advocacy

The seventh International Legal Ethics Conference took place last week at Fordham Law School’s Stein Center for Law and Ethics. The conference is supported by the International Association of Legal Ethics and was sponsored, in addition, by a variety of  law firms and law schools, including our own law school. We were proud to sponsor this provocative and informative conference.

One of the panels at the conference was devoted to current ethical issues in criminal advocacy from an international and comparative perspective. Panelists addressed a variety of fascinating issues arising in Germany, Israel, the United Kingdom, Chile, Australia and the United States. The panel was moderated by Prof. Lissa Griffin, of the Elisabeth Haub School of Law. A summary of the presentations follows:


CURRENT ISSUES IN DEFENSE ETHICS 

Anat Horovitz, Hebrew University, Israel
Re-trials are the procedure prescribed under Israeli law through which a person who claims to have been wrongfully convicted can try to reverse his conviction. From a legal perspective, the chances of success in an application for re-trial are extremely limited. Since 1948, the Supreme Court has granted a re-trial in only 28 cases, which resulted in the exoneration of 21 convicts. Thus, one of the important challenges that the Public Defender’s Office has focused upon in recent years is the need to bring about change within Israeli society and its legal system in respect to recognition and treatment of wrongful convictions.

Under the Israeli Public Defender Law, the National Public Defender can file a request for re-trial on behalf of a convict, if he or she “determined that there is room to file a request for re-trial on his behalf”. Over the past few years, the Re-trial Department in the Israeli Public Defender’s Office has received between 30-40 applications a year, and following a long and tedious process, filed on average one request a year.

In my presentation, I intend to focus on the extent to which the Public Defender’s Office may take into account its institutional role and aspirations when deciding upon the cases it chooses to pursue and the manner in which these cases should be presented. Examples for dilemmas that can arise in each of these two stages include 1) whether or not to file a request on behalf of inmates who raise only partial claims of innocence, and 2) to what extent a Public Defender’s Office should attempt to prove another person’s guilt as a means to secure its client’s innocence. Had it been a legal clinic, in the first example, or a private attorney, in the second example, I doubt if these issues would have been regarded as problematic, but in the context of a Public Defender’s Office it is unclear how they ought to be approached and to what extent strategic and ideological considerations should impact the way these applications and cases are handled.


Stephanie Roberts, University of Westminster, UK
My presentation looks at the role of defence lawyers in wrongful convictions in England and Wales. I am currently doing an empirical study on our Court of Appeal and I will be using a sample from that where the grounds of appeal have been lawyer errors to see which ones will result in the conviction being overturned. We have had a large number of cases here where asylum seekers have been wrongly convicted of criminal offences such as arriving with a false passport because their lawyer has not explained to them that there is a statutory defence available and they have pled guilty to the charge. The Court of Appeal has now dealt with a number of these and quashed the conviction so I can link the discussion of defence lawyer ethics.  In the limited time for presentations, I will go through the empirical findings of what errors result in an overturned conviction.


CURRENT ISSUES IN PROSECUTION ETHICS 

Shawn Marie Boyne, IU McKinney School of Law, US
For decades, German prosecutors were bound by the principle of mandatory prosecution that mandated that they prosecute any case in which sufficient evidence exists to suspect that a crime has occurred. Beginning in the 1970s however, changes in the legislative code and changes in prosecutorial practice began to erode the force of that principle.  As a result, in the vast majority of “minor” crime, cases are settled with a fine, a deferred sentence, or a dismissal.  At first glance, this practice appears to be consistent with American plea bargaining. However, in contrast to American practice, the crimes that fall into the “minor” crimes category include crimes that are considered to be felonies in the United States, notably rape and corruption. Though those classification decisions are made by the German legislature, they are compounded by the organizational incentives in German prosecution offices that favor efficiency over painstaking investigation and prosecution. These factors, plus the German system’s comparatively lenient sentencing practices, play a large role in explaining why German prosecutions have not fueled an American-style incarceration explosion. In domestic violence and rape cases, these factors prevent German prosecutors from using the criminal justice system to reinforce the goal of gender equality.  Indeed, German prosecutors’ turn towards efficiency has undermined what Damaska labelled as the role of the activist state in the criminal justice process.

Because lay jurors in Germany seldom affect a case’s judicial outcome, there are three main “checks” on prosecutorial decision-making. To begin, victims may appeal a prosecutor’s dismissal decision to the General Public Prosecutors Office. Also, assuming that a sex crimes case makes it to trial, German law allows victims to be represented by a private prosecutor (Nebenklager) who functions like a party in the American system. Finally, if a prosecutor’s work product falls below standards or if a prosecutor breaks the law, the prosecutor may face administrative sanctions.

In this presentation, I argue that taken together, these checks on prosecutorial discretion do not adequately protect victims of sex crimes and domestic violence. As I point out the deficiencies of these systems of control, I will address the question: Why aren’t prosecutors more assertive in prosecuting these types of cases? Is it simply a matter of resources or is it attributable to larger issues in German society?


Marny Requa, Georgian Court University, US
This talk focuses on decisions to pursue criminal cases against police officers and members of the military in Chile for torture and mistreatment. The Chilean criminal justice system has undergone significant reform since 2000. Incidents that arose before the reforms are still dealt with under the old system, generally with magistrates investigating and making prosecutorial decisions after private parties have initiated a case. In the past 15 years, magistrates have been more willing to prosecute these cases. Recent incidents are most commonly prosecuted by a new, independent public prosecutor’s office (Ministerio Público), although a vast number of these are not pursued. Decision-making in both types of cases raises political as well as ethical considerations that have changed over time, a point emphasized in empirical research conducted as part of an ongoing research project titled Lawyers, Conflict and Transition, funded by the UK Economic and Social Research Council. The talk will cover key points from that research impacting on prosecutorial decisions as well as formal and informal forms of accountability.


Lawrence Hellman, Oklahoma City University School of Law, US
Prosecutorial misconduct is now understood to be widespread in the American criminal justice system.  Official misconduct was a factor in half of the 1800+ known wrongful convictions in the United States that have been corrected by post-conviction remedies since 1989.  However, existing accountability systems provide insufficient deterrents to misconduct by prosecutors, and they do little to motivate and enable prosecutors to deter official misconduct on the part of other state actors involved in prosecutions.

I propose consideration of a new approach to prosecutorial accountability that draws on the successful transition to a proactive management-based regulatory system that has been adopted in Australia for incorporated legal services providers.  I will describe how a proactive management-based model of prosecutor accountability might function and suggest how it might be implemented without necessarily applying it to the entire American legal profession.  The proactive model would supplement, not replace, the current reactive system.  It would be designed to reduce not only the misconduct of prosecutors themselves, but also misconduct of other state actors, such a police, investigators, and laboratory scientists.  By reducing official misconduct in the criminal advocacy process, wrongful convictions should become less common and meritorious prosecutions should reach more reasonable outcomes.


Kellie Toole, University of Adelaide, Australia
In Australia, a prosecutor must be satisfied of a ‘reasonable prospect of conviction’ before prosecuting a person for a serious crime. The assessment of the reasonable prospects often involves a relatively objective assessment of available evidence. However, ethical issues arise where witness credibility is critical, as with sex offences, and jury decisions can be unpredictable or even undesirable. Prosecutors have to decide whether to proceed where they assess that a jury might convict but should not, or might not convict but should. This situation raises issues about the prosecutorial role of the community (through the jury) and the State (through the prosecutor), and the fine line between prosecutors properly exercising their discretion, and improperly usurping the decision-making role of the jury.

Judge Rakoff Addresses Mass Incarceration in the U.S.

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

The Honorable Jed S. Rakoff, Senior Federal District Judge serving on the Southern District of New York, is one of the most distinguished federal judges and one of the most outspoken on criminal justice issues. A previous PCJI post reported on Judge Rakoff’s recommendations for the process of plea-bargaining. In November 2014, the judge addressed this issue further in an article he wrote for the New York Review of Books.

Prior to assuming the bench in 1996, Judge Rakoff was a federal prosecutor in the Southern District of New York, where he served as Chief of the Business and Securities Fraud Prosecutions Unit. He subsequently entered private practice and worked, among other assignments, as a defense lawyer on securities law prosecutions.

Judge Rakoff has been a friend of the Pace Law School community. He has on several occasions judged Pace’s Grand Moot Competition. He has also mooted Pace’s International Criminal Court moot court team, drawing on his experience as an advisor to International Criminal Court prosecutors at The Hague.

In an article published in the May 21, 2015 issue of the New York Review of Books, Judge Rakoff thoroughly reviews the issue of mass incarceration in the United States. The judge recently addressed this issue further in a speech he delivered at a conference at Harvard Law School in April 2015.

The judge notes that while the population of the U.S. is about 5 percent of the world’s population, U.S. prisons house nearly 25 percent of the world’s prison population.

Judge Rakoff attributes these statistics in large part to strict sentencing laws adopted, beginning in the 1970s, by Congress and State legislatures. These laws, which included mandatory minimum sentences for both violent and non-violent crimes, were intended to reduce the high rate of violent crime the U.S. was experiencing in the 1960s and 1970s. “The dictate common to all these laws,” the judge writes, “was that, no matter how minor the offender’s participation in the offense may have been, and no matter what mitigating circumstances might be present, the judge was required to send him to prison, often for a substantial number of years.”

In the years following adoption of these laws, the U.S. crime rate significantly declined. “The unavoidable question,” Judge Rakoff says, is whether the decrease in the U.S. crime rate can be attributed – either wholly or at least in some part – to the adoption of these strict sentencing laws. Judge Rakoff reviews several analytical studies that attempt to answer this question. The judge notes that the answer to this question is especially important because of the social effect of these laws: “by locking up so many young men, most of them men of color, we contribute to the erosion of family and community life in ways that harm generations of children, while creating a future cadre of unemployable ex-cons many of whom have learned in prison how better to commit future crimes.”

Judge Rakoff’s conclusion from the evidence presented, and the claims made, in these studies is that “one cannot fairly claim to know with any degree of confidence or precision the relative role of increased incarceration in decreasing crime.”

To rebut public belief to the contrary, the judge writes that

those whom the public does respect should point out why statutes prescribing mandatory minimums, draconian guidelines, and the like are not the solution to controlling crime, and why, in any case, the long-term price of mass incarceration is too high to pay, not just in economic terms, but also in terms of shared social values.

Students’ Perspectives: Blaine Sloan Lecture by Prof. Ohlin and the Assault on International Law

On Monday, April 13, 2015 Pace Law School hosted a Symposium entitled Foundations of International Criminal Law, which was well attended by faculty, students, and staff. The symposium offered three thought-provoking discussion panels:

In addition, as part of this symposium, Prof. Jens David Ohlin delivered the 27th annual Blaine Sloan Lecture entitled The Assault on International Law based on his book of the same title. The following are two students’ reflections summarizing this riveting lecture.

 

Defection Isn’t Working Guys: Cooperation as the (First) Best Choice  

REFLECTION WRITTEN BY: Cassandra Castorino (’17), Pace Law School

Why should nation-states cooperate with one another, what role does international law play in multinational cooperation, and why is it significant? This three-part question was the fulcrum of Prof. Ohlin’s annual Blaine Sloan lecture.

Ohlin’s lecture presented an outline of his latest book, The Assault on International Law, in which he argues that international law must be complied with because the incentives to do so are present and persuasive and the benefits to be accrued are manifold and far-reaching. He avers that while it may be tempting for states to defect to gain seeming advantage (truly only a myopic one), it is international cooperation that offers the advantage for states. Abiding by international law  not only creates less risk, but it also provides for a greater reward  both in the short and long term. International institutions, conventions, and multilateral treaties, such as GATT and WTO, have already incentivized cooperation among states by reducing both the monetary and opportunity costs of cooperating, eliminating potential barriers to cooperation, and encouraging reciprocity of cooperation between competing states.

It is the United States withdrawal from international cooperation after 9/11 that triggered the need for a reevaluation of how our nation responds to its self-interests, Ohlin argues. The war against al-Qaeda brought about U.S. noncompliance with international law, particularly the torture policies and the drifting away from compliance with the Geneva Conventions, International Criminal Court, and United Nations. Ohlin urges the United States to follow his plan in order to awaken a shift from a self-motivated, minimally-gaining society, to one that willingly recognizes the value of abiding by international law. Profitability with respect to compliance of international law knows no bounds, Ohlin maintains.

Ohlin’s plan to revive U.S. compliance with international law is his own unique modification to the New Realists’ rational actors’ model that already exists in international relations theory. The New Realists’ model posits that states are sovereign and adopt their own mode of rational decision-making but that such decisions are guided only by national interests defined in terms of state power. This model is a self-motivated one – it urges states to act only pursuant to their own personal gain. Ohlin takes this plan of rationality and turns it against them. He strikes down the New Realists’ notions that states only act as rational actors when pursuing their own self-interest by redefining the ‘actor’ in the model. Ohlin suggests that states should act, not as states, but as humans, in assessing and carrying out their goals. Humans, unlike states under Realist theories, exhibit the propensity to remain faithful to the goals they devise because they know how salutary the effects will be once fully consummated. Seldom do humans reassess their main goal at each intermittent step to see whether or not defecting from their overall plan would provide for a higher return. Instead, even when humans veer off the set-out path to accomplish their goals, they only think of the end long-term goal and the high yield it will bring once carried out. In effect, the end goal exemplifies the true self-interest of the human actor.

Self-interested motivations run our world. Thus, applying Ohlin’s theory, if the effectuation of a long-term beneficial goal is motivated by self-interest, his plan works and promises gains both in the short- and long-term. If the State is kept as the actor in the rational model, however, self-interest can only be viewed through myopic, temporary gains that are sure to fall short in the long-run. If States were to adopt beneficial, long-term plans and complete the plan, as humans do, respect for and adherence to international law would likely not find itself in the precarious position it assumes today.

After hearing Ohlin’s plan of ‘human’ rationality for states, game theory notions, particularly that of the prisoner’s dilemma, immediately came to mind. By the end of his lecture, however, Ohlin successfully challenged the application of prisoner’s dilemma theory to international cooperation – now, it no longer holds in that context. The theory of prisoner’s dilemma says that although it is less risky and more gainful to always cooperate, rational actors acting in their own self-interest are still dissuaded from cooperating because there is a chance, albeit slim, that defecting provides the highest return. Prisoner’s dilemma relates to a scenario of 2 prisoners being interrogated: if both prisoners decide to cooperate and both either confess or stay silent, their time in prison will be shortened appreciably and they will likely receive the same sentencing. Conversely, if the two prisoners fail to cooperate and one confesses while the other one remains silent, the one who confesses may walk away free while the other one has to serve longer jail-time. Thus, the incentive to defect, if you think you’ll be successful, is high – one can potentially be absolved of all wrongdoing and spend no time in jail.

However, this theory only holds true if the theory of rationality is viewed through the lens of the New Realist framework. Ohlin has refashioned the self-interested rational actor model to make prisoner’s dilemma not applicable to cooperation with international law. If we apply Ohlin’s human plan of rationality to States we are dissuaded by the chance of ‘walking away free’ because, both in the short- and long-run, the defection is not as incentivized as cooperation is under international law. The natural instinct when complying with international law is to act like the human and follow through with the end goal. International law already incorporates mechanisms to discourage States from viewing defecting as beneficial. International law should be respected for all the benefits it bestows on States who choose to comply with it and the U.S. needs to give it another chance. Ironically, defecting has proven not to bring about a higher yield for our nation, bar none. It has led us astray from beneficial foreign policy goals and has  threatened our position at the apex of world influence. Defection from international law, very plainly, is not working for the United States.

My hope is that Ohlin’s cogently argued and laudably innovative thesis receives the attention, praise, and actual implementation it so merits because the potential effect it could have on our nation’s choice of which lens to view its foreign policy may bring our nation back to its heyday of exceptionalism – yet this time around, provide for a lasting exceptionalism, achieved by different, more globally salutary means.


A Look Into the Assault on International Law

REFLECTION WRITTEN BY: Joseph Moravec (’17), Pace Law School

Professor Ohlin focused on three points. First, following the attacks of 9/11, the Bush Administration (namely its various legal counsels) sought to discredit international law in order to circumvent certain obligations under international law and pursue courses of intelligence gathering, drone use in extra-judicial killing and surveillance, and the institution of torture. Second, the theoretical disillusionment with international law in academia by New Realist thinkers furthered skepticism of international law in deciding whether the United States should adhere to its international legal obligations. Professor Ohlin argues that in theory and application the Bush Administration found ways to re-write the interpretation of U.S. obligations so as to do “all that was necessary” to fight the War on Terror. Finally, Prof. Ohlin countered this thinking with the argument that, had the United States worked to adhere to international law and pursued multilateral courses of action during the initial stages of the War on Terror, we may have seen significantly greater success in both defeating Al-Qaeda, as well as preventing the rise of other terror groups such as Al-Shabab in Somalia, Boko Haram in West Africa, or more recently the Islamic State in Iraq and Syria.

While Professor Ohlin’s rebuttal of New Realist thinking is cogent, I find his argument incomplete. His argument rests on an interpretation of Rational Choice Theory, stating that the United States in the past 15 years has moved to a short-run view of rational decision making. By pursuing courses of action in short-term self-interest, the U.S. is both not winning the War on Terror, but also not obtaining the best future outcome. If the U.S. were to pursue a long-term strategy of national security, Prof. Ohlin argues, it would naturally include adherence to international law and would result in greater long-run prosperity and security.

However, the argument rests on two assumptions concerning the nature of rationality that were not fully addressed during his lecture. First, Prof. Ohlin’s argument that all international actors would follow international law because it is in their long-term rational self-interest presupposes that all international actors are interested in the same long-term ends, namely the “good of their people.” During the lecture, Prof. Ohlin examined the Netherlands and North Korea. The Netherlands have done quite well adhering to international law while North Korea is one of the poorest States in the world. Leaving aside alternative historical, geographical, and political explanations for the failures of North Korea and the success of the Netherlands, it cannot be said that the political players in the Netherlands and North Korea have the same rational framework. In the Netherlands, democracy in itself dictates the “good of the people” as the ultimate goal of political power. At least in theory, democratic elections ensure that a democratic government will act rationally toward this future interest. However, the situation in North Korea is quite different – a military oligarchy and hereditary dictatorship where elites personally choose a successor. Whatever we may think about political philosophy, we must consider the rationality of North Korean actions from the perspective of those who hold the power to make foreign policy and political decisions. From that perspective, North Korea has done quite well not adhering to international laws, which would long ago have undermined the dynasty of elites in political and military leadership, making it rational not to follow international law. It cannot be said that all international actors (States) are rationally interested in the same ends, and thus it is unlikely that all actors would pursue the same course to achieve those ends.

Second, Prof. Ohlin’s argument assumes that all international actors have the same capacity and ability for rational decision-making. A metaphor of two chess players is illustrative. When I play chess, I plan a strategy four or five moves ahead. However, Grandmaster players often calculate fifteen to twenty moves in advance. If I were to play against a Grandmaster, we would both be thinking and moving in our own long-term self-interest towards the same goal (winning), but I would likely lose because I lack the capacity to calculate far enough into the future. Thus, the capacity for rational decision making is not always equal among all actors. Rational Choice Theory presumes that both actors are capable of understanding the problem in order to reach the best possible outcome. However, as with chess players, States are unequal in their capacities for rational decision making. In the U.S., we have thousands of universities, think tanks, government institutions, free press, one of the strongest military and economy, a greater control of many vital natural resources, and the third largest population – we are, in a way, one of a few “Grandmasters” of international political actors, making us capable to rationally plan long-term. On the other hand, a State such as North Korea has limited economic and social power and thus significantly lower capacity for long-term planning. Thus, North Korea is less likely to rationally plan on the same scale as the U.S. Even if we assume that adherence to international law were the most rational course of action, North Korea may still pursue a course of action which ignores international law because North Korea may lack the resources and institutional capacity to accurately forecast the best long-term policies. In fact, it does not follow that either actor will ultimately succeed in reaching a “best” strategy. Both States have different resources and capabilities, and even the strongest State may lack the capacity to plan and execute the “right” plan.

Even if international actors are not equal, it is at least established that the U.S. is the State capable of pursuing a truly rational best strategy. If a complete adherence to international legal obligation is the most rational choice for such a strategy, as Prof. Ohlin argues, then the diversion of U.S. foreign policy from international law during the War on Terror has been a diversion from truly rational thinking. Perhaps even the U.S. with all of its resources has lost some of its capacity for long-term strategy. While the debate continues, it is a difficult task to scrutinize 15 years of U.S. foreign policy in hindsight. However, the very fact that we have an academic debate on this topic is itself a testament to the freedom to think rationally and the institutional capacity to do so that we all enjoy in the United States. We should not waste either one.

Undercover Practices: A Comparison

POST WRITTEN BY: Lissa Griffin, Professor at Pace Law School & Rafael Wolff, Federal Judge in Brazil and SJD candidate at Pace Law School.

A recent editorial and recent articles in The New York Times address the growing use of undercover agents and their necessarily deceptive practices. The New York Times now reports that the use of undercover operations has expanded “with officers from at least 40 agencies posing as business people, welfare recipients, political protesters and even doctors or ministers to ferret out wrongdoing….” The justification is the efficiency and cost-savings over traditional investigation through tips, legwork, interviews, search warrants, and surveillance. No probable cause or search warrant is required.

Is such widespread deception part of our culture?

Maybe it’s just one of the choices we have to make given our Constitution. Our historic fear of centralized authority and the accompanying protection of the individual against government intrusion makes some other more overt investigatory techniques unavailable to us. Thus, for example, in the United Kingdom, recent terrorist legislation improved the Government’s ability to investigate and prevent terrorism by extending the permissible periods of pre-charge detention. Imminent terrorist events may now be averted by simply breaking up the terrorism groups, and enhanced questioning can be accomplished early on. Our bill of rights would prevent that. Thus, instead of investigating overtly, we investigate by deception.

Up until now, rules and guidelines have been inadequate. Now, apparently in response to the “Fast and Furious” undercover operation that allowed guns to travel to Mexico, the Department of Justice has  issued internal guidelines designed to “tighten oversight” of undercover operations. Before prosecutors approve of using undercover investigation, they must consider “whether an operation identifies a ‘clearly’ defined objective, whether it is truly necessary, whether it targets ‘significant criminal actors or entities,’ and other factors.” This is good.

So, does Brazil tolerate as much deception as the United States?  Our conclusion remains that Brazil’s statutory limits restrict deception and protect privacy to a much greater extent than do the US due process clause or recent agency guidelines.  Considering the efficiency of undercover operations, but considering the risks to third party privacy and even to the agent’s security, maybe Brazil needs to use more, and the United States less, of this particularly interesting investigative tool.

These articles raise questions about the scope of undercover investigations and about fair investigative tactics by government agents. An instructive comparison can be made between limits on undercover activity in the United States and in another country, for example, Brazil.

In Brazil, the use of undercover agents requires a judicial warrant authorizing the infiltration of a criminal organization. This is expressly stated by Law 11.343/06 (Article 53, I) and Law 12.850/13 (Article 10). A judge may only issue such a warrant if the government establishes: 1) evidence of organized criminal activities or narcotics offenses; and 2) it is impossible to produce the evidence by another less intrusive way (Law 12.850/13, Article 10). Those are both federal laws, as just the Federal Congress can legislate about criminal procedure. Organized criminal activity occurs when there is a criminal organization of four or more individuals that functions in a structured way and with a division of tasks, even informally, to obtain direct or indirect criminal advantage. To be considered a criminal organization, the activity should be punishable by a maximum prison sentence of more than four years. Law 12.850/12 also allows the use of undercover agents and other special investigative tools in case of transnational crime which Brazil is internationally obliged to eradicate (for sure, when the crime occurs in Brazilian soil) and transnational terrorist groups recognized by international organizations in which Brazil is a member.

The use of undercover agents is also legal in the investigation of crimes created by Law 11.343/06, that is, in investigations into narcotics crimes. This category was included by the legislature because of the considerable risk of danger in the organized narcotics business.

In addition, Law 12.850/13 requires that the conduct of the undercover agent be proportional to the goal  of the operation and provides that the agent will be criminally culpable for any excess (art. 13). The same article makes clear that the agent will not be liable if it was not reasonable to act differently in the case.  The legislation is very vague, however, leaving it to the court to fix the limits in the warrant.  For example, it will be the judge who, based on the values prescribed by the Constitution and statutes, will have to decide if it is reasonable to allow an agent to send child porn pictures during an investigation.  This is not an easy call, especially since there is no consistent case law about it.

However, interestingly, Brazil defines “undercover operations” much more narrowly than does the United States so that these strict requirements only apply to certain undercover conduct.  Brazilian statutes (Laws 11.343/06 and 12.850/13) use the term “infiltrated agent” to define the regulated investigative activity, not “undercover agent.”  Thus, the definition only applies to those operations that involve agents assuming false identities to infiltrate criminal organizations. The use of plain clothes officers to buy drugs without the use of a false identification would not be regulated by the statute. In such cases, the need for a warrant is not even discussed in the case law. (STJ, AgRg no AREsp 1.956/SP, Rel. Ministra MARIA THEREZA DE ASSIS MOURA, SEXTA TURMA, julgado em 21/06/2011, DJe 01/07/2011). Thus, the kind of conduct reported in The Times, for example —  the presence of a police officer in the middle of a political protest —  would not be considered conduct by an “infiltrated agent,” as long as a false identity is not used to allow infiltration in a criminal organization. On the other hand, an officer who pretends to be a child to uncover a criminal organization involving pedophilia in the internet, for example, would indeed be subject to the warrant requirement.

From the defense perspective, there is protection against entrapment (article 17 of the Brazilian Criminal Code). For example, a defendant will not be liable for possessing a child porn photo sent by an undercover agent if the court finds the defendant was entrapped. However, this defense will not protect the Defendant if he possesses other photos, for example.

In the United States, of course, police and prosecutorial use of undercover agents is limited only by the broad and permissive boundaries of the due process clause. See, United States v. Cuervelo, 949 F.2d 559 (2d Cir. 1991). Unlike Brazil, in the United States there is no requirement of a warrant or of judicial supervision of any kind regarding undercover agents. In fact, the Supreme Court has made clear that the use of undercover agents – even when the agent wears a wire – does not constitute a “search” under the Fourth Amendment. Lopez v. United States, 373 U.S. 427 (1963); On Lee v. United States, 343 U.S. 747 (1952); Hoffa v. United States, 385 U.S. 293 (1966); and United States v. White, 401 U.S. 745 (1971). As the Court has reasoned, betrayal by ones associates is always a risk, so there is  no  expectation of privacy in those interactions if they involve an undercover agent. Given that there is no “search,” there is no warrant requirement or a requirement even of probable cause or reasonable suspicion to use undercover agents to obtain evidence. Nor are there any statutory limits to the practice. The only limitation is whether an undercover officer’s behavior “shocks the conscience” of the court. Readers will remember the stomach-pumping case that actually did shock the conscience of the Supreme Court. Rochin v. California, 342 U.S. 165 (1952).

The Sixth Amendment right to counsel, which attaches after arraignment, may limit the use of undercover agents – but only after charges have been brought and the defendant has been arraigned. That is because, under Massiah v. United States, 377 U.S. 201 (1964), and its progeny, law enforcement may not contact a defendant without going through defense counsel.

In the United States, now, there is not likely to be a consensus for restricting the use of undercover agents, although the discussion of this issue in the press is interesting. New York Times reports that the use of undercover agents is widening and now extends anywhere from sending fake protesters to demonstrations in front of the Supreme Court to creating false identities for doctors and ministers to investigate welfare or other fraud. Until now, at least, we have balanced our interests in privacy, our separation-of-powers-based willingness to give our prosecutors and police tremendous discretion in law enforcement, and our desire for crime control in favor of discretion and crime control. Brazil’s restriction of undercover intrusions to cases involving organized crime, narcotics, terrorism and other transnational crimes that are the object of international treaties – to seriously dangerous organizational criminal behavior that is – should command our attention. Maybe we should tailor the intrusion to protect against serious criminal conduct while protecting the increasingly shrinking sphere of privacy for the rest of us. Certainly, Brazil’s requirement of a showing that there is no less intrusive means to secure the evidence sought should not be a seriously difficult evidential burden. Given the U.S. courts’ willingness to impose only the most nominal restrictions, the way to do this, of course, would be the way Brazil accomplished it – through legislation.

More on Grand Juries and the US Justice System

On December 5, 2014, as part of the HuffPost Live, Pace Professor of Law and Director of the Pace Criminal Justice Institute Lissa Griffin joined Roger Fairfax, Professor of Law at George Washington University, and the host Josh Zepps for a live discussion about the role and function of grand juries in the US justice system. Josh Zepps introduces the segment by saying that

[i]n the span of two weeks, two grand juries have failed to indict cops involved in the death of unarmed black men. Most counties don’t even have grand juries. Why do we? How do they work? And what can be done to fix our flawed legal system?

The two guests explain what grand jury is, how it operates, how it decides to indict, the role of the prosecutor during grand jury proceedings, and the lack of judicial involvement during this stage. The discussion further progressed to consider comparative perspectives, including the French, German, and English indictment procedures.