Pretexting Law
Pretexting is an essential tool in the PI's box of tricks, but it's trickier than most. Read this section carefully to be sure that you understand the issues involved and the laws that govern pretexting. If you feel uncomfortable with this tool, you can get by without ever using it, but it can be most valuable in certain situations. However, if you intend to use it, do it correctly. Don't cross the line from legal to illegal for any reason.
What Is Pretexting?
The American Heritage Dictionary defines pretexting as: 1) an ostensible or professed purpose, an excuse; 2) an effort or strategy intending to conceal something. Basically, pretexting is lying, but not lying for personal gain or with intent to hurt another. It has become controversial because of serious misuse in the past, yet when it is properly executed, courts have upheld its use.
Lying for any reason is a moral issue, and in certain circumstances it is a crime. For some, lying is merely a means of getting what one wants. Others won't misrepresent anything in any way. The criminal justice system has struggled with how far deception should be allowed to go for years, and the issue is still presented to the courts from time to time.
Undercover work is lying — every step — from the false name and credentials to the unmarked car masking the law enforcement operative's true identity. Yet it isn't done for personal gain. While some argue against pretexting, the courts have consistently ruled it permissible if it was done without coercing the innocent into a false confession.
Civilized Ideals Versus Real-World Practicality
A problem lies in the need to balance the reality of criminal behavior with laws that protect the rights of all. The criminal doesn't abide by laws, and many prey on the average citizen's uninformed idealism and naiveté about the criminal mind and behavior. Because of this, the law enforcement officer, and by extension the PI, may feel constrained by laws protecting the rights of this person who cares nothing for the rights and safety of others. Yet commitment to the rule of law (defined basically as a universally accepted and defined group of laws) separates countries such as the United States from those ruled by totalitarianism.
Because of what's at stake, adherence to the law must be the PI's top priority, yet it must be balanced by protection of the public. Considering the real-world side of this coin — the need to provide protection — the Supreme Court has recognized this challenge. In order to balance the scale when necessary, it has given permission to certain behavior that skirts the hardline rule of law, and it allows those with responsibility for public protection to push the truth ever so slightly when seeking information from a suspect. The line is fine, however, and must be tread carefully.
In achieving this balance, the cost of lying is weighed against the foreseeable benefits to the public and victim should this lie result in solving a crime. When placed on the scale, the moral wrong of the lie (if done correctly) isn't as weighty as achieving justice for the crime victim and protection for the public by removal of the offender — especially a violent one — from society.
Unfortunately, this isn't the only situation in which legal ideals and real-world practicality clash. For every ideal a civilized society vows to uphold, there is something else to challenge the practicality of that ideal. Some of these challenges follow:
The presumption of innocence is challenged by the knowledge that many are actually guilty.
The ideal to protect each person's civil rights is challenged by the fact that some have abused, and will continue to abuse, the civil rights of others. When victim and offender rights conflict, the question of whose rights are more important strains the ideal.
The ideal of the right to bail is challenged by the knowledge of the violent potential of many offenders should they be released.
The ideal of law enforcement refraining from use of physical force is challenged by suspects who refuse to be taken into custody without a fight and by the need for the officer to protect himself and the public.
More challenges exist within the law, but this short list is intended to give you some idea of the problem of finding a balance. It also illustrates the fact that separate arms of the law sometimes line up on different sides of these challenges. For example, part of the defense counsel's job is obtaining bail for her client. The officer's or detective's job is to apprehend and put the defendant in jail until trial. He and the prosecutor may want bail denied to a violent defendant. The judge must look at both sides, thus the challenge: choosing between bail rights of the defendant and rights of protection for the victim and the public.
