The Right to Silence and Undercover Police Operations
| Author | David R. Craig |
| DOI | 10.1350/ijps.5.2.112.14322 |
| Published date | 01 June 2003 |
| Date | 01 June 2003 |
| Subject Matter | Article |
The right to silence and undercover police
operations
David R. Craig
Adelaide, South Australia; email: davidrcraig@hotmail.com
Received 27 November 2002; accepted 20 January 2003
David Craig
undertook his doctoral research in
undercover operations. This theoretical knowl-
edge is enhanced by his previous experience in
undertaking the role of undercover operative and
undercover supervisor. David has a particular
interest in improving the capacity, effectiveness
and operation of a law enforcement agency’s
undercover and informant handling programmes.
David completed a BA and an MA in Justice
Studies and graduated as a Doctor of Legal
Science (Bond University, Gold Coast Australia)
in June 2001 (Doctoral Thesis: Targeting Heroin
Importations; Legal Aspects of Undercover
Operations).
A
BSTRACT
While conducting doctoral research on interna-
tional undercover operations, the author attended
undercover training courses in the United States
(US) and in Canada. He also conducted inter-
views with undercover operatives and those that
supervise undercover operations with several agen-
cies in the US, Canada, United Kingdom (UK)
and the Netherlands. During the course of this
research the author was privy to sophisticated and
contemporary undercover training and recruitment
methodologies. While the author is available to
provide advice to law enforcement agencies on
undercover management and training, the author
is cognisant of the detrimental effect of disclosing
policing methodologies to those external to law
enforcement who may hold less than desirable
motives. As such, this article is focused upon
shedding some light upon the legal ‘grey’ area
that exists between the right to silence and police
undercover investigations, from information avail-
able in the public domain. However, when
researching material for this article, the author
was both surprised and alarmed at the quantity
and accuracy of publicly available information on
undercover policing methodologies.1
EVOCATION OF THE RIGHT TO
REMAIN SILENT
PRIOR
TO AN
UNDERCOVER OPERATION
The right to silence is both a highly pro-
tected and protective principle at the core
of our justice system. It is clear that any
statement obtained from a suspect as part of
an overt investigation after the right to
silence has been invoked is subject to the
judicial discretion to exclude and may, as a
result, be ruled inadmissible. However, the
legal issues surrounding covert investiga-
tions where a suspect has previously exer-
cised the right to silence are somewhat less
clear and require further examination.
The situation in the United States
In the US the recently introduced McDade
Amendment2requires Federal prosecutors
now to comply with the bar and ethic rules
of each State. The bar and ethic rules of
virtually every State within the US prohibit
contact with an individual who is repre-
sented by counsel without first contacting
the representing lawyer.3As most organized
crime groups have a legal representative,
this requirement limits the opportunity for
International Journal of Police
Science and Management,
Vol. 5 No. 2, 2003, pp. 112–125.
© Vathek Publishing,
1461–3557
International Journal of Police Science & Management Volume 5 Number 2
Page 112
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