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Legalwriter
Legalwriter, Lawyer
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Experience:  8 years of law practice, former law journal articles editor
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Assume this hypothetical:U/C Investigator X is conducting

Resolved Question:

Assume this hypothetical:

U/C Investigator X is conducting surveillance on target 'MIKE' using a GPS transmitting 'MIKES's' vehicle speed as well as cameras aimed at 'MIKES' eyes. Reviewing data, U/C (X) notices that at certain locations, 'MIKE' is 5MPH above speed limit. U/C (X) then arranges for 'Agents of the Government' to be pre-positioned at those locations in order to either charge 'MIKE' with something more serious than speeding if he does not look at the 'Agent of the Government' on the road for safety purposes or use 'MIKE's gaze upon the 'Agents of the Government' as evidence of malintent. U/C (X) selects the very young and the very old as 'victims.' The trap is set with 'MIKE' going 5MPH above the speed limit at those locations. When he does not look, he is charged with a crime. When he does look for safety, his gaze is used as evidence of malintent.' U/C (X) then omits from his reports that the alleged 'victims' are 'Agents of the Government' and that the situation was created by government actors and not a natural event. You are 'MIKE's attorney.
1. Is there a crime commited here by MIKE other than speeding when U/C (X) is the one
that causes the transport and positioning of the 'Agents of the Government' to
get 'MIKE' either way?
2. Is there a 6th amendment right of confrontation affecting 'off the books' 'Agents of the
Government'?
3. Is there an ethics violation here for using methods of obtaining evidence infringing on
the legal rights of third parties?
4. Is 'MIKE' entitled to the methodology of the operation as exculpatory evidence
premised on the fact that once all the facts are known, a reasonable person would
conclude that U/C (X) and his cohorts engaged in an scheme to defraud the court by
witholding material facts affecting the perceptions of triers of fact/law?

Your opinion, counselor.
Submitted: 1 year ago.
Category: Homework
Expert:  Angela--Mod replied 1 year ago.
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Customer: replied 1 year ago.


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Expert:  Legalwriter replied 1 year ago.
Hello.

With respect to question 3, what third parties does the question refer to whose rights are violated? The only parties I see mentioned are the agents and the defendant.
Customer: replied 1 year ago.


The juvenile and adult 'Off the books' Agents of the Government... would they be considered third parties if they were not in a position to consent to their use as such due to ignorance, age? Would they be a third-party at all regardless?


 

Expert:  Legalwriter replied 1 year ago.
That sounds reasonable. I was thrown off by them being designated as "agents". I guess it means agents is the broader sense rather than FBI agents. I will work on this for you. Is there a word requirement? Also, do you need it specific to New York law?
Customer: replied 1 year ago.


No word requirement. You can be as detailed as possible with examples if necessary. Both NYS and Federal.

Expert:  Legalwriter replied 1 year ago.

1. It is unlikely that a crime was committed other than speeding at all. New York law requires drivers to exercise due care toward pedestrians, animals, and bicyclists in the roadways, but does not create a criminal offense unless the pedestrian sustains actual injury from an encounter with the driver's vehicle (New York Vehicle & Traffic code sec. 1146). If for some reason the undercover officer tries to charge Mike with attempt to commit some kind of violent crime because of the "malintent" that is read in his eyes, the UC would also likely lack probable cause for that charge. As stated by New York law, "A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime." (New York Penal Code sec. 110.00). Other than looking at the pedestrians with malicious intent, it does not appear that Mike took any other kind of substantial step to actually effect the crime.
If for some reason Mike is charged, it is unlikely that the manufactured situation that gave rise to the charge would provide him with a solid defense. An entrapment defense is only effective if the person was not inclined to commit the crime but for the officer's inducement. Here, Mike was likely to commit the crime whether the pedestrians were government agents or ordinary citizens and the undercover was not involved in his decision to engage in that conduct. New York law notes that with respect to entrapment, "Inducement or encouragement to commit an offense means active inducement or encouragement. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.
2. If a crime is charged here, I would argue that there is a violation of the Confrontation Clause here if Mike is charged with any offense relating to endangering pedestrians or of intending to assault them. Based on the description of the methodology in place, the camera only captures Mike's eyes. There is no independent surveillance, either by video or by the undercover officer himself, of the government agents and their positions in relation to Mike's car. Without an eyewitness or an authenticated video to place the pedestrians in some kind of danger zone near Mike's vehicle, it cannot be established that Mike was endangering pedestrians. The most the government can prove is that he was not looking in a certain direction at a specific time, which is not a crime in and of itself. Had the "trap" given rise to a traffic stop by providing probable cause, and illegal contraband was discovered, resulting in charges on the contraband only (no pedestrian-related charges), the Confrontation Clause or the prohibition against hearsay would not be violated because the agents would not be witnesses to the actual crime charged. But if he is charged with a pedestrian-related crime, there would need to be some evidence that puts the pedestrians in a location where they were in danger from Mike's conduct. Absent any independent evidence, that testimony would have to come from live testimony of the pedestrians themselves, because to introduce it in their absence violates the Confrontation Clause as well as the evidentiary ban on hearsay.
3. There is likely an ethics violation in recruiting these individuals as "government agents" for the purpose of catching Mike in the act of a major traffic violation. They are described as "very young" and "very old," suggesting that there may be an issue with their ability and competency to knowingly consent to putting themselves at risk. Juveniles by law are not able to give competent consent until they reach the legal age of majority, which in New York State is 18 years old (New York Domestic Relations Code sec. 2). The elderly often suffer from mental ailments that may prevent them from knowingly consenting to the activity here. It is clear that the undercover officer suspects that Mike is a danger to pedestrians, based on the UC's knowledge of his tendency to speed, and so it would be extremely unethical to put anyone who is legally incapable of consenting to the risk in that situation.
4. Mike is probably not entitled to the methodology behind the undercover operation. Brady v. Maryland, 373 U.S. 83 (1963), a Supreme Court case, requires that prosecutors disclose all exculpatory evidence to the defendant as part of the discovery process. As discussed above, the fact that it was staged by police does not give rise to a legitimate entrapment defense, so that is not particularly relevant or exculpatory. Moreover, the ethical questions raised by the employment of the "government agents" are not a defense that Mike can raise, because he has no standing to challenge the poor treatment of a third party. Consequently, it is not likely that the court would compel the prosecution to turn over the undercover strategies, particularly if they are still in use as a crime-fighting tool and releasing the information would jeopardize it.
Customer: replied 1 year ago.


Follow up questions:


 


1. Would U/C (X) be required to disclose the situation as a sting


operation with government actors and not a natural act caught by


chance?


2. Does the confrontation clause apply here? Who can be called to


testify in this situation?


3. Ethics violation for any attorney involved?


4. Does a parent or guardian have the authority to put a juvenile or a


senior citizen in this situation?


5. If it can be established that such governmental action occurred as


retaliation for exercise of a protected right, would such give rise to a


due process defense of retaliatory investigation or prosecution?

Expert:  Legalwriter replied 1 year ago.
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Legalwriter, Lawyer
Category: Homework
Satisfied Customers: 4006
Experience: 8 years of law practice, former law journal articles editor
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