4.5: Ethical Issues during an Investigation
Caseload Management
Law enforcement officers who are in investigative roles are often confronted with ethical issues during the investigative process. Officers who have a heavy caseload are expected to determine which case to investigate at the expense of other cases. Officers often rely on the solvability of the case, and concentrate on that case, which means that cases that may be slightly more difficult to solve are never solved. This is a consequentialist perspective, in which the end result is seen as the most important aspect of the investigation.
Some officers may do an assessment of the victim, coupled with other investigative variables that allow the officer to decide which case is ultimately more serious and more important to work on. The difficulty with this approach is that the officer’s values are taken into account and are weighed against the rights of all victims. Problems arise when victims who may not be considered high on the investigator’s valued list (for example an officer who does not value sex-trade workers), do not receive the same level of service that other, favoured victims do. Officers must be cognizant of their personal biases and ensure that they consider other variables, such as solvability, continuation of the offence, serial offences of the suspect, seriousness of the injury, and perishable evidence.
Lies, Deception, and Tricks
Investigators walk a line between being tenacious in their investigations and being overzealous in refusing to give up a case that ought to be closed due to a lack of evidence. Officers must be aware not to allow their personal feelings to interrupt objective, critical and reflective consideration of the case. Investigators should routinely ask themselves how a case would look in court when all the facts are known by the defence counsel and the judge. Would their credibility suffer as a result? If the answer is yes, investigators need to address this and decide whether they should continue along their investigative path, or stop.
The Supreme Court of Canada does permit officers to use “tricks” to solve crimes. In Regina v. Rothman, the Supreme Court ruled that police can use tricks, so long as they do not shock the community. Such shocking or “dirty” tricks include things such as impersonating a priest or a lawyer to gain a covert confession.
Tricks that officers are able to use include posing as gangsters or drug dealers in undercover operations in order to obtain covert confessions. Other tricks that officers may use are lies in interviews to bond with subjects. Lying in law enforcement is allowed in certain circumstances, but is strictly forbidden in other circumstances. These include, but are not limited to:
- Creating evidence or planting evidence
- Lying in court (testifying)
- Lying in reports, notebooks, or other administrative or investigative reports
- Lying in any administrative or civil proceedings
- Lying to fellow officers or supervisors
The scope for lying is very narrow and it should be used sparingly for serious investigations by officers who know the boundaries and what would be accepted in court. However, the ethics around lying lead some officers to discount it as a tactic. Some of the reasons they cite for the unacceptability of lying include:
- Lies destroy confidence in the police. Both the suspect and the community at large will not believe even truthful information brought forward in the future by an officer who uses lying.
- Lies are immoral because they are an illegitimate means to an ends. It goes against Kant’s categorical imperative that we should never lie, regardless of the consequences of not getting a confession in what may be an important case.
- The courts may disallow the evidence because the courts may determine that the evidence was obtained through tactics not warranted under Regina v. Rothman.
- The officer’s religious beliefs and scripture prohibit or strongly discourage lying for interviews and criminal investigations.
Some officers have little issue with lying to suspects, taking a utilitarian and legalistic approach. They argue the following:
- It is for the greater good because lying justifies the end result (a classic utilitarian perspective that maximizes happiness).
- The positive consequence of lying to find evidence outweighs the consequence of not lying and thus not retrieving evidence.
Other officers take a different perspective, arguing:
- It is their duty to do what they can to solve a crime. However, lying does not follow Kantian logic because the act itself is wrong. The duty is to solve crime, not to lie. Furthermore, Kant would argue that the officer is using the person as a means to an end to get a confession.
- Solving a crime means you have to play at the criminal’s moral level at times, and that as long as the evidence is admissible, anything goes. This perspective brings officers dangerously close to crossing the ethical line, venturing into noble-cause corruption. Officers must, in this case, be aware of the limits allowed by the court and not be tempted to surpass these limits.
Other investigative tricks include undercover operations ranging from simple stolen property investigations to elaborate and lengthy operations for murder and drug conspiracies. Essential in undercover operations is the need for an undercover officer to establish credibility with the suspect or target. In doing so, the officer may have to commit, or appear to commit, a crime. This may include stealing or damaging property, selling and handling drugs, or selling and handling restricted weapons. The actions of undercover officers have limits, such as officers not engaging in drug use, crimes of violence, or sex-related activities. Section 25.1 of the Criminal Code protects officers against prosecution as long as they are in the lawful execution of their duty and can account for the need to “break the law.”