"You a cop? No? Then please sign these documents."
October 30, 2013 10:33 AM   Subscribe

So, by now everyone knows that it is not entrapment if a police officer lies when asked if they're a police officer. It's just an urban legend, probably spread by police officers themselves. But what if you ask them to sign an affidavit swearing to the fact that they are not a police officer? Would that work?

It only takes a notary public and a few witnesses to create an affidavit, right?

So, here's my scheme: you hire a lawyer for a few hours to draft the appropriate language ("the affiant affirms that he/she has never been employed by, compensated by, or in any assisted any policing organization, whether state, local, federal or international..."), with a blank spot where you fill in the name. Then you make a bunch of copies to bring with you on your drug-dealing adventures. When a new person you don't recognize tries to buy drugs, you have them sign the document, accompany them to your buddy Jim who moon-lights as a notary public, scare up some witnesses, and then have him sign it, get it witnessed and notarized. Then, if it turns out that the person was in fact a cop, he will have committed perjury.

Note that neither the notary public doesn't have to be in on it, he's just performing his official function, with no knowledge of the details.

I'm assuming there's a reason this wouldn't work, but I'm just curious to hear it. Is it that no prosecutor would ever prosecute a police officer under these circumstances, and because perjury is a criminal charge, you can't sue for it? Or is it that an affidavit whose explicit purpose is to be used in a criminal enterprise is not a valid legal document?

Would be curious to hear what some lawyers have to say about this.
posted by gkhan to Law & Government (20 answers total) 3 users marked this as a favorite
I think your idea falls down where you want people to sign their name to something before they buy drugs. Nobody wants to create a paper trail for their illegal doings.
posted by mollymayhem at 10:36 AM on October 30, 2013 [12 favorites]

I am not a lawyer, but I can't see how that would excuse you from committing a crime. Your defense would have to be "I only committed the crime because he swore an oath he wasn't a cop!"

You still committed the crime. Assuming anyone wanted to sign anything legally to affirm they were committing a crime....and those people would be idiots. I mean, if they weren't cops, they'd think you were one.
posted by inturnaround at 10:37 AM on October 30, 2013 [2 favorites]

Then, if it turns out that the person was in fact a cop, he will have committed perjury.

That's not criminal perjury in South Carolina. You have to be in court, or filling out an official state document. YMMV.
posted by ftm at 10:39 AM on October 30, 2013 [1 favorite]

But what if you ask them to sign an affidavit swearing to the fact that they are not a police officer? Would that work?

It still wouldn't be entrapment. You aren't being convinced or coerced into committing a crime when you wouldn't otherwise do so.

Then, if it turns out that the person was in fact a cop, he will have committed perjury.

Common law jurisdictions may differ, but I think perjury generally involves a false statement made under oath in connection with a case or some other type of official proceeding. So, this wouldn't be perjury.
posted by Area Man at 10:43 AM on October 30, 2013 [1 favorite]

i am a retired lawyer who laughed heartily upon reading your question, thank you. the short answer is no.

perjury is entirely contextual. there's good perjury and bad perjury, and only the bad perjury gets prosecuted. an example of good perjury is when you're the director of central intelligence telling congress that the NSA does not collect americans' phone records. good perjury happens every day in american courts, when the cop testifies that the d made a "furtive gesture" or when the k-9 handler neglects to inform the tribunal that he cued the dog to alert.

there is a mistaken assumption in your question relating to the concept of "justice". this concept is also contextual and subjective. there is no such thing as objective justice, because there is no such thing as objective reality; the photon that bounced off the object toward you, enabling you to image it, changed the object so that it is no longer what you see. fortunately, there's a sufficiently common simulacrum of reality that we can (usually) drive safely through an intersection.
posted by bruce at 10:51 AM on October 30, 2013 [26 favorites]

what ftm and Aream Man said about this not being perjury. you're missing a duty for the affiant to tell the truth in the affidavit. without such a duty to begin with, there is no perjury.
posted by smokyjoe at 10:56 AM on October 30, 2013 [1 favorite]

I can't imagine that anyone, cop or not, would ever sign such a thing as part of a drug transaction. But, if they did, it would probably work against you, not for you. The essence of entrapment is whether or not the defendant was inclined to commit the criminal act even without the facilitation or encouragement of the cops. To prove a defense of entrapment, you have to prove that you were just going about your lawful business, and the cops came along and enticed you to commit a crime that you otherwise had no intention of committing. The fact that you had gone to the trouble of having this form affidavit all ready to be signed would serve as additional evidence that you were indeed planning to commit the crime, and that you knew that it was a crime. The affidavit would go a long way to undermine a defense of entrapment. The cops, I think, would be inclined to thank you for making their case so much easier, and for giving them a good laugh.
posted by Corvid at 10:59 AM on October 30, 2013 [4 favorites]

Lawyer here. No, this wouldn't do anything, for the reasons ftm and Area Man said. Perjury isn't any "lie under oath". Perjury can only happen in the context of an "official proceeding", which a drug deal is not. Also, not all lies under oath are perjury. It has to be about a "material matter".

This idea would be pretty stupid because it is just evidence that the unlawful transaction took place.
posted by Tanizaki at 11:04 AM on October 30, 2013 [4 favorites]

Interestingly, assuming, arguendo, that this was considered perjury on the part of the officer, and the officer's superior told him he had to sign such an affidavit as part of his job, the officer may be able to assert an entrapment defense in the prosecution on the perjury charge.

Even if the officer, under some bizarro-world justice system, did get convicted of perjury, that does nothing to your conviction, other than calling into question the credibility of the testimony of that officer in your trial. And, on top of that, you've now turned your one-man small-time drug selling biz into a large-scale criminal conspiracy.
posted by melissasaurus at 11:06 AM on October 30, 2013

So, this lawyer drafts a document to assist you in selling illegal drugs to a person? Where are you going to find a lawyer to do that? This isn't TV.

You're also still selling the drugs.
posted by Ironmouth at 11:10 AM on October 30, 2013 [2 favorites]

As mentioned above, this is not perjury. There are also practical reasons this idea doesn't get off the ground. As mollymayhem alludes to, the undercover cop will just say "Yeah, I'm not giving you my name and driver's license to create a notarized paper trail for this drug deal" and the dealer has to accept that because that's what a real drug buyer would say too. So as a screening method for sniffing out cops, it makes no sense even putting the legal issues aside.
posted by payoto at 11:11 AM on October 30, 2013

The doctrine of unclean hands applies - the dirty-handed drug dealer can't sue anybody.
posted by hush at 11:36 AM on October 30, 2013

I'm not a lawyer but I'm pretty sure that entrapment requires law enforcement to coerce or otherwise manipulate you into committing a crime that you would not have committed if you were left alone.

Whether the officer lied to you, even under oath, is irrelevant.
posted by Gev at 12:34 PM on October 30, 2013

Response by poster: To be clear, I wasn't saying that this would be a defense against entrapment, just that this would be a way for drug-dealers to make sure that their customers weren't police officers (given that they would not be willing to sign something that would make them liable to perjury charges).

But the point seems moot either way, it seems like it wouldn't work. Oh well, so much for my brilliant legal loophole :)
posted by gkhan at 1:00 PM on October 30, 2013

Back to the ol' loophole dart board there, gkhan.
posted by Kruger5 at 1:03 PM on October 30, 2013 [5 favorites]

Undercover officers routinely break the law in pursuit of criminals, e.g. ingesting drugs to "prove" they're not a cop.
posted by klangklangston at 2:07 PM on October 30, 2013 [3 favorites]

IANAL! Setting aside what others have brought up above (that an affidavit isn't relevant in terms of perjury unless and until it is sworn as part of a judicial proceeding), there's also the idea that jurisdicutions tend to authorize peace officers to justifiably commit acts that would otherwise be offences if they are done in the course of their duties.

For example, they can park in places that would otherwise be prohibited, they can assault you (in the simple sense of laying hands on you against your will - which could be an offence if anyone else were to do so - not to speak of excessive use of force during arrests), etc. Klangklangston notes that police will sometimes deal with drugs during investigations (although ingestion of drugs, per se, is typically not an offence; rather, posession or trafficking is).

Signing documents under false pretenses in order to mislead the subject of an investigation could be seen in the same light. I wonder what would happen if one were to have the person execute a (purportedly) binding contract of some sort rather than an "I am not a cop" undertaking... but as hush notes above you wouldn't be coming to court with clean hands if you tried to enforce such a contract.
posted by onshi at 2:11 PM on October 30, 2013

Assuming that it even works, that the lying cop actually gets prosecuted for it, what's the point? You'd still get screwed in any case, at worst creating a minor nuisance for the cop. It's the equivalent of yelling "fuck you" while being pushed into the police car.

posted by ahtlast93 at 4:41 PM on October 30, 2013

How it apparently works in the Mafia-style systems is that you require the person to kill someone in front of you, and thus with you now able to testify to their murdering, they can't bring you down for your crimes without you bringing them down with you. The "Mutually Assured Destruction" principle.
posted by anonymisc at 11:11 PM on October 30, 2013 [1 favorite]

If I understand correctly, the notary public in this scheme would be doing something illegal. Your buddy Jim might go for it, but many notaries would not.
posted by box at 8:51 AM on October 31, 2013

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