Recently, Josephine Ho (何春蕤), a professor at National Central University (中央大學), has severely condemned the investigative methods of Taiwan's police -- including a huge number of "entrapment" (誘捕) and "fishing" (釣魚) cases. We agree with her that law enforcement officers should improve their investigative techniques, but believe she has mischaracterized the present situation. Therefore, an explanation of what the legal terms "entrapment" and "fishing" mean is in order, so that the public will not be misled by her misunderstanding.
First of all, the public needs to understand that the term "entrapment," as stipulated in US criminal code, does not refer to all undercover investigative operations. The US Supreme Court has recognized that when investigating certain criminal activities, police may lawfully adopt a variety of undercover techniques that, although elusive, do not constitute entrapment. Entrapment, in other words, is not equal to fishing according to the criminal law.
Entrapment refers to cases "when law enforcement officers have, through inappropriate means, induced a person to commit a crime and then arrested the person for committing that crime." Hence, a defendant is immune from legal prosecution if the investigation against the accused is ruled entrapment by a court. Moreover, according to the criminal law, the accused has the "burden of proof" regarding whether or not the investigative means was inappropriate when raising an entrapment defense. To argue that he or she was entrapped, the accused first needs to prove that the criminal act occurred because of the inducement of investigators, and the commission of the crime would have never taken place without such inducement.
That being so, although Ho has criticized law enforcement officers for searching in the newspapers or on the Internet for and arresting those who publish advertisements for enjokosai (freelance prostitution,
Ho also says that law enforcement sometimes intentionally post fake advertisements for prostitution or disguise themselves as prostitutes to lure clients. Do these types of fishing tactics qualify for the defense of entrapment? The answer is: not necessarily. A US Federal Court has ruled that any investigation involving fishing does not necessarily have to be launched after a specific suspect is targeted. Also, when arguing for a defense of entrapment in order to avoid prosecution, practically, a defendant must prove with evidence that he or she was unduly persuaded, threatened, coerced or harassed by police into committing the crime.
Some citizens have blamed police for not being frank and open enough, because, for example, local police often hide in dark corners to catch traffic violators. These citizens seem to have forgotten the real purpose of obeying traffic laws. What have the police who hide in dark corners got to do with them -- if they themselves do not violate the laws? Are they obeying the law merely to avoid being caught by police?
The purpose of abiding by the law is for us to live harmoniously. If a law enforcement method fails to tally with social norms, we can appeal to the government and the legislature to amend the law. However, it is indeed improper for anyone to mischarachterize the situation and to condemn all police without valid proof.
Frank Huang is dean of student affairs at the Central Police University. Lin Ching is a senior police officer. Translated by Eddy Chang
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