Anonymous said: Question: Should any procedural crimes (like lying) committed during the investigation of a alleged crime be prosecuted if the crime under investigation is found to not exist in the first place? My thinking is: If no crime was committed in the first place, then the investigation should never have taken place. It can't be undone as such, but anything found out during that investigation should be inadmissible and documents be destroyed. Likewise, any procedural crimes should not be prosecuted.

Just because no crime actually occurred, that doesn’t mean the government shouldn’t have investigated whether a crime had occurred. That’s the point of an investigation — to find out. Back when I was a prosecutor, I ranĀ tons of investigations where I ultimately decided that no crime had occurred (or at least none worth prosecuting). As a defense lawyer, I’ve had plenty of cases where my entire job has been to end an investigation by showing that no crime had occurred, and they need to leave my client alone. It’s more common than you might think for such cases to be dropped before they ever get to the charging stage.

That doesn’t make the investigation itself unlawful. So long as the rules were followed, and people’s rights were respected, the government is allowed to gather evidence to figure out what the heck’s going on. The fact that no crime occurred isn’t what makes the gathering of evidence unlawful. It’s the breaking of rules and violation of rights that does it.

And lying to law enforcement is itself a separate crime. So you could have done nothing wrong, but then you lied to the agents asking about what happened, and you wind up prosecuted for lying to law enforcement. It’s got nothing to do with whether you’d originally committed the crime they were investigating. It’s about the new crime you actually committed while they were investigating.

If you ask me, it’s a bad idea to criminalize lying to the police. For lots of reasons. Not the least of which is that even scrupulously honest and law-abiding people try so hard to demonstrate that they’re telling the truth that they sometimes exaggerate or say things that aren’t 100% true. But the fact is that Congress in its infinite wisdom has seen fit to criminalize it, and there we are.

tl;dr — Your beef is with the legislature for criminalizing basic human behavior (and prosecutors who choose to charge such crimes), rather than with law enforcement for doing its job.







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