Is it OK to set up a surveillant in an investigation to save the client money?
Some surpising answers and By Ralph Thomas
Last month yet another national television program aired an investigative agency that uses a technique in which paid females are hired to "help out" in collecting evidence on a cheating spouse. Every time I see one of these incidents, my blood starts boiling again. Recently a message was posted that stated:
"Setting up a husband like they showed on the tv special is not entrapment. That is just giving the husband the opportunity to do something he was going to do anyway...Nobody is twisting his arm to do it. It is totally his decision. "
OH REALLY? "He was going to do anyway" says who--you--your client--God--who? Are you being an investigator or something else. This isn't the police department--this is private investigation. This is civil law not criminal law. These people aren't trying to put anyone in jail--they are trying to find THE issue on who's going to get what money. They <and when I say they--I'm referring to BOTH sides> almost always (remember I said almost) say the other one is cheating--sometimes they are----sometimes it's just a four letter word called HOPE and other times they just want someone to create some "creative" evidence. You do enough of these with that approach, in my opinion, it will backfire on you some day. It might not be on a current case or a case next month but it WILL happen. Correct me if I'm wrong but I believe we have a little item build into our system that says a man is innocent until proven guilty! That's the presumpion you use. Some people try and disregard that truth but I haven't seen any movements in the last one hundred or so years to remove it from our books. Even in a civil case <some of it is the same!> the presumption of proof is on the plaintiff and the presumption of innocent is on the defendent. I have, however noted a trend in professional negligence cases!
Rather you call it arm twisting, hair turning, finger twisting, or nose pinching, it's not the degree that's at issue- it's the act itself. So you "already know" what this man is going to do so you are going to use that reasoning to "justify" placing a half naked girl on a barstool whom you are going to say isn't their to "intice" him, just being paid to "excell" the surveillance because he was "going to do it anyway"? READ ON---attorneys for the other side will have a field day with this one in a civil court! Then why is she there and why can you not just let the subject prove or disprove his actions without the setup? He either does or he dosn't--and until you prove otherwise without any setup on your part--the law says he doesn't.
CIVIL LAW AND CRIMINAL LAW ARE TWO DIFFERENT THINGS
CIVIL law is very different from criminal law on some of these issues. One involves jail time, the other the gain or the lose of money--Both motivations and laws need to be considered in different lights.
In this line of work (private investigation--not cop work) you run into three areas:
A) Things you can do that are legal
B) Things you can do that are not legal.
C) Things you can do that are legal but unethical and can BACK FIRE!
You are taking the postion on this that the relevant issue is A. I'm saying A and B are moot and C is relevant.
ENTRAPMENT IS ENTRAPMENT DESPITE WHAT THE LAW SAYS
In my opinion-when it comes to civil law- Plain old entrapment is plain old entrapment no matter what the circumstances of the case are and no matter how the law defines it under hair spitting circustmances. I have always stayed away from it. And in my mind entrapment is ENTICING someone to do SOMETHING they would not otherwise do AND ----->OR maybe they will or maybe they will not. You are attempting to minipulate the action of the evening on your surveillance. You already know from the small still voice within you that this isn't right-but you are going to do it anyway--after all--it's CHEAPER for the client. READ ON--THAT CHEAP SURVEILLANCE MIGHT END UP THE CLIENT THAT WILL SUE YOU! YOU MIGHT JUST THINK YOU ARE SPEEDING THINGS UP. But only God knows for sure what the subject is going to do. That's not for us to determine. It's not wise to use it as A SHOTCUT for surveillance or investigative work or anything else under any circumstances--I have seen it backfire in many types of cases. I understand the law - the hair-splitting issue you speak of but just because something isn't unlawful doesn't mean it's ok to do it--that's what is wrong with society in my humble opinion.
These types of things:
TACKS FOR FLAT TIRES ON INSURANCE CLAIMS
SETTING A HALF NAKED WOMEN ON A BAR STOOL NEXT TO A SUBJECT
WAVING A BAG OF COKE UNDER THE NOISE OF AN ADDICT TRYING TO RECOVER
HIRING A HOOKER TO COLLECT EVIDENCE IN A CIVIL CASE
It's all the same smut as far as I am concerned. I know it goes on--I know people get away with doing it every day and I understand in many instances it's not illegal to use. However, in my opinion, it's still unethical and has the potential to really blow-up in your face from a civil standpoint. Have you looked at civil legal defense rates these days for some of these types of issues? You can start at around $10,000 in retainer fees and that will get ate up fast, if you loose, you got another attorney that's going to get paid out of your pocket for the other side. And, in the rare instance in which the thing actually gets in a court room (Your ten grad retainer will have already been eaten up by then so you'll have had to shell out some more) --you could have some gal--your client--setting there with a smile on her face. She didn't get the money she wanted in her divorce. She's going to claim you screwed up her case--her X really did this stuff but you, the expert in the matter, choose to "speed up" the surveillance then the judge threw the evidence out of court-=-now you got'a pay what she would have gotten from her X! THEORY OF LIABILITY-- likely-- but professional negligence is a trend--WHO WANTS TO BE THE FIRST TEST CASE?
THE OTHER SIDE IS GOING TO HAVE SOME QUESTIONS FOR YOU IF THEY CATCH ON AND THEY WILL BE LOOKING FOR THIS!
If someone wants to conduct a surveillance or an investigation on a potential cheating spouse or whatever the circumstance, let the subject prove or disprove the FACTS. By placement of any enticement--it might be a fact and it might not be--who knows. It opens up an unethical and liability CAN of worms! It comes down to the fact that you are either a professional investigator or a smut-producing enticer attempting to minipulate the evidence and in my opinion, it comes too close to potential altering of the evidence (and notice the word potential please!) . Any good defense attorney (notice I used the word GOOD) could cast a reasonable doubt on such a circumstance. I seen a good attorney one time turn an investigator into a piece of mince meat on the stand under such circusmtances which completely discounted any and all evidence the investigator developed in both the jury's eye and especially, the eyes of the judge. The judge didn't take kindly to it at all. What was really sad about this incident is that, if the investigation would have been done without any of these little setup tricks, the subject would have likely (notice I said likely--that's where the problem comes in>) did the same thing. But because the investigator took a SHOTCUT and set up the subject, and because the subject had a very good attorney and investigator for the other side that sniffed this out-the defense made the plaintiff look like a complete fool. The investigator used almost the same words you did when confronted on the stand:
ATTORNEY: Why did you have to PAY Mrs. Edson to establish what you are ah...I am assuming you are calling this a fact?
INVESTIGATOR: "Well we were just giving him the opportunity to do something he was going to do anyway"
...... the investigator took the bait on that question from the plaintiff attorney and he had an absolute field day! By the time the attorney was done with the investigator, the judge would have, if it would have been in his power, yanked the investigator's license from the guy he was so mad and half the jury was shaking their heads!
IT MIGHT NOT BE CRIMINALLY ILLEGAL BUT THAT'S NOTE THE ISSUE! THE MONEY ISSUE IN THE CASE--WHO'S GOING TO GET WHAT-COULD QUICKLY TURN FROM THE MONEY OF THE SUBJECT AND CLIENT TO THE MONEY OF THE INVESTIGATOR!
Although it's not ILLEGAL to place a tack on the road so you can film a worker's compensation claimant in Florida changing a flat tire--try it and walk into a Florida court with it and see how the judge reacts to it. Chances are good that the judge (if he has been on the bench for any length of time) has already seen enough of them and I have seen them say things like:
Oh yes!! want'a loose a couple of real good wc clients--try that one!
I tend to side with these judges. That's my opinion--not anyone else's but I'm entitled to it! It's a free country, you can do it the way you want to but when the process server finally comes calling or the sharp silver tongued defense attorney finally gets you on the stand to explain why you "helped speed up the evidence collection on your surveillance" because the guy was "going to do it anyway" that attorney will likely just LOVE you--the client, the judge and maybe even your licensing board will likely not!
After it's all over, if your case came from a law firm, you'll likely never be called in on another again and you had better hope the client doesn't feel prone to file a malpractice action!
If you still think you can "speed up" these surveillances because "it was something he was going to do anyway" Why don't you try this it would work faster and you don't have to hire a third party to help::::
Just keep a gun on the guy and tell him if he doesn't do what you say, you'll shot him, then just film him doing whatever it is you'd want to catch him at------I mean after all----you are just collecting evidence that you "know the guy does anyway" right--you are just "giving him the opportunity to perform" it now-- right? While you are there----I mean by his action on film-- that certainly proves it. Really--I mean heck--if the guy can not physically left a brick because of his bad back--he can not do it rather you have a gun on him or not--right? Just point the gun--tell him to pick up the brick and if he does it that proves the case---and the other side is certainly going to have a hard time proving this was a GOOD DAY for the poor guy right? I mean gosh--if he really didn't want to do it he wouldn't do it--ah shoot--that's too ruff isn't it----that's kind'a "arm twisting" isn't it---heck--let's change the DEGREE a little--let's turn the gun into a bee-bee gun---heck--no one's going to say anything about a bee bee gun---right? And HECK----if it's a domestic, let's just put a gal next to him and put some cloths on her at first--no one will notice we did it!
No--we don't do the gun thing- that's because it's criminally illegal. The problem is, what is criminally illegal to do is very clearly defined. Civil law is NOT so clearly defined because you can file a civil action on someone for just about anything. You will not likely go to jail if you get snared into a civil action but we have this system. When it comes to money-- your money--the hard earned money you made working your cases- that's the issue. It's not jail time, it's money time--your money becomes the issue--not your client's! The other side wants to take some of yours and you got two attorneys between you and the other client trying to do the same.
And while I'm at it, I just as soon had better give you my opinion on what I usually see happening in these cases. They are usually settled out of court.No big deal you say? Of the four parties involved (you-your attorney--the other party's attorney-the other party) Both parties with the word attorney in it make money-the "other party" might get a little token and you foot the complete bill for the three others. And even in the "settle this" stage the clock keeps ticking by an hourly rate you'll be lucky to ever be in a postion to charge yourself multiplied by two! Insurance? Yes! But get a few claims like that and find out how fast your premimums can rise-if you can still get insurance at all!
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