The dilemma is simple, the law is growing more complex. A prosecutor wants to tell a rich and complete story, and asks the officer or detective how or why a suspect came to be arrested, or even how a person became the focus of police scrutiny or came to be in a photo array. Yet eliciting that information comes at higher and higher risk—the more complete the story, the more the Constitution might be violated.

How does this crop up? In a criminal case, a police officer might be asked to explain what led to the arrest of the defendant, or what caused that person to be placed in a lineup or photo identification procedure. The answer might be any of the following:

  • “Upon information received, I proceeded to arrest the defendant.”
  • “After interviewing witnesses to the shooting, I placed the defendant’s photo into an array of photos to show to the victim.”
  • “My informant told me that [name of defendant] was involved in the drug deal.”

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