by Tim Baldwin
Sex sting operations by police are becoming common today, in all states. The agency that is most responsible for sex sting operations is known the Internet Crimes Against Children (ICAC) task force. Despite how agents for the government might lead the public to believe differently, sex sting investigations do not create “open and shut” cases, and not everyone who gets caught in the police net has a guilty mind. In many instances, the facts and circumstances around sex sting investigations create room for plausible defenses. Unfortunately, many people called for jury duty are unable to be fair and impartial when the allegations are sexual in nature. This is why defense attorneys must look at sex sting cases from every possible defense angle. The following is a brief review of some important issues that may arise in a sex sting case and have significant impact on the case result.
The federal government funds many state operations, and believe it or not, some rich, private persons are funding state operations as well and even directing where the police should conduct their investigation. In some cases, ICAC sex sting investigations are funded by private persons in large part, as much as 90%. Funding creates defense issues, such as a motive for officers to increase the number of arrests so they can justify asking for more money. It can also create issues concerning the defense of entrapment. Where officers are looking for a person to arrest, they may be inclined to encourage a person to commit a crime so they can effect an arrest quicker.
ICAC Operation Plan
ICAC sex sting operations should have an Operational Plan. The plan is sent to the participants of the investigation, and the participants are supposed to follow the plan. Their knowledge of the plan can and should be tested. The plan sets forth important parts of the investigation, which may prove critical to challenging the government’s practice and procedures. For example, the plan may provide, to name a few:
- the mission and purpose;
- list of participants and their duties;
- arrest scenarios and procedures;
- the script for undercover officers to follow when conversing with target suspects;
- evidence collection procedures; and
- interview procedures
Some prosecutors may be unwilling to provide this plan, even though it is clearly discoverable for various reasons. The prosecutor may claim the plan is confidential or not in the state’s possession. The defense should not accept this answer at face value, but rather push hard to obtain this crucial material to prepare a proper defense. At a minimum, the court should review the materials in camera to determine whether they are discoverable.
Officers who participate in ICAC sex sting operations should be specially trained for them. Since ICAC sex sting investigations are relatively new and create many due process concerns, a defendant should obtain the training material of officers who have a particular bearing on the defense. For example, if there is an issue of entrapment, the defense needs to discover the training material of the undercover officer who conversed with the suspect to ensure he or she was trained properly and did not contradict the training in this area. Like the operation plan, the prosecutor may claim that this material is irrelevant, confidential, or otherwise not discoverable, but if the training material helps the defense, it must be explored.
Witnesses’ memory can be a major issue in a sex sting case because during these investigations, there are many officers coming and going from target locations; undercover officers are making many arrests to “catch a predator”; and many officers do not write reports of their involvement. Since sex sting cases heavily involve the issue of the defendant’s intent (i.e., did the defendant travel with the intent to have sex with a minor, or is there another plausible and reasonable explanation, such as being a vigilante or engaging in a fantasy game), the minutiae of the case are extremely important to present to a jury. Where officers forget the facts of a particular case or confuse one case with another, the defense may have many opportunities to challenge the way the government collected evidence and arrested the defendant. This is important to consider because in a jury trial, the judge will read specific instructions to the jury that concern how well the witness was able to recall the facts of the case. Where officers cannot remember facts or confuse them, the government will have a much harder time proving the charge beyond a reasonable doubt.
ICAC sex sting investigations are composed of many officers from various state and federal agencies. Many officers do not live in the local area where the investigation took place. Some officers have no expectation of having to stay involved in the case after an arrest is made. They expect the cases will resolve one way or the other without their involvement–they are already thinking of and engaged in other investigations. So, where a defense attorney does due diligence for his client and demands interviews with the witnesses, there will inevitably be officers who do not want to submit to an interview or go to trial to testify. Some officers will display their contempt for defense attorneys who require an interview. As the case nears trial, some officers will express their unavailability or ask the prosecutor not to call them to testify, and when a defendant subpoenas them for trial, some officers will wonder why and ask the defense attorney to explain. These factors play a role in defense strategy because the defense attorney can determine which witnesses will be more credible, which witnesses will be available for trial, and which officers show respect for the rights of the accused to defend against the allegations.
State and federal laws prohibit officers from directly encouraging (i.e., “entrapping”) a person to commit a crime. Sex sting cases present unique opportunities for officers to entrap because the officers’ goal is to converse with a person online undercover and get that person to engage in “Sexual Abuse of Children.” ICAC officers are supposed to be trained specifically on how to avoid entrapment; the operational plan as well as ICAC investigative standards are designed to protect people from entrapment. Entrapment is a defense for a reason: society does not want the government to create criminals by targeting people who are not predisposed to commit crime. This defense is important not only for particular defendants, but for society as a whole.
Some prosecutors are very reluctant to share material that could be helpful to the defense. As a rule, the more material the defense has, the easier it is to refute the government accusations. This is why some prosecutors “hide the ball” as much as possible. It is not fair, but it is hard for defense attorneys to challenge it. Of course, the defense does not know what material exists and is not in a position to state what material has not been supplied. So, being able to allege a discovery violation can be difficult because there needs to be a good faith basis in law and fact to file the motion. The defense needs to know that in sex sting cases, some material should always exist. For example,
- operational plan;
- operation checklist;
- ICAC investigative standards;
- investigative reports;
- interview recording;
- audio-video surveillance;
- email or text of “chatter” conversation;
- funding application; and
- search warrants
- to seize electronic communication with chatter before arrest
- to search electronic devises after arrest.
Discovery rules are there so the parties know what evidence to present to a jury. Defense attorneys would do their clients a service by not ignoring this.
For your criminal defense, email Tim Baldwin at firstname.lastname@example.org.