In the movie “Donnie Brasco,” Johnny Depp plays an undercover FBI agent who misrepresents his identity to a Mafia Don, played by Al Pacino, resulting ultimately in the latter’s betrayal and death at the hands of his criminal cohorts. Brasco’s deception is supervised and encouraged by Justice Department lawyers. In real life, federal and state prosecutors frequently employ undercover investigators who, in the name of the public interest, misrepresent their identities, goals, objectives, backgrounds and other attributes in order to trick unsuspecting suspects into making incriminating admissions that will result in their arrest and incarceration.
There remains little doubt that the use of undercover investigators passes constitutional muster. The federal courts have rejected entrapment challenges to the use of undercover investigators going back to the Prohibition era.1 And the courts roundly rejected entrapment defenses by the Abscam defendants, congressmen and mayors who solicited and accepted bribes from undercover federal agents and informants posing as oil-rich Arab sheiks. Last year, federal agents penetrated a terrorist ring that was plotting to infiltrate and attack the U.S. Army base at Fort Dix, N.J.
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