During trial preparation, you are directed by the Assistant U.S. Attorney (AUSA) to bring the tapes of intercepted conversations involving a prime suspect in your case to her office. You provide the evidence custodian with the necessary paperwork and are waiting for the tapes to be produced. After 20 minutes, the custodian comes back and asks if you are sure you have provided the correct case and exhibit numbers. You verify the numbers and are told the original tapes cannot be found.
You immediately inform your supervisor, who is understandably concerned. You have the paperwork documenting the fact that the tapes were transferred to the custody of the evidence custodian. The other agents in the office are asked whether they have any knowledge of this matter. No one has any idea as to what happened to the original tapes.
You and your supervisor call the AUSA and explain to her what has happened. She is furious and tells you not to be surprised if the judge throws out the entire case. You remind her that she has duplicate copies in her possession and that you have your working copies as well. She says her copies were barely audible, and apparently there was some problem with the recording equipment. You decide to do some research on the best evidence rule.
- Address the following in 1,250–1,500 words:
- What is the best evidence rule? Explain in detail.
- Why was the best evidence rule implemented into the U.S. court system? Explain.
- What is the rationale behind its application?
- Review the following cases with regard to wiretapping:
- Olmstead v. United States
- Nardone v. United States
- Goldman v. United States
- Berger v. New York
- Katz v. United States
- Summarize the current status of wiretapping restrictions according to the reviewed cases above.
- How must evidence derived from wiretapping be packaged and preserved? Explain.
- How does wiretapping evidence relate to the “fruit of the poisonous tree” doctrine? Explain.
- What is the likely outcome of your case in court if the originals are not located? Explain.
- What is the best evidence rule? Explain in detail.
- Be sure to reference all sources using APA style.
Please use the below outline to write this paper.
Nicole Borey’s Outline
Title: The admissibility of wiretapping evidence under the best evidence rule.
Thesis: the copies of the wiretaps are admissible under the best evidence rule provided that they did not infringe the accused’s Fourth Amendment right, or were obtained in a manner contrary to other statutory law.
- The definition of the best evidence rule: The best evidence rule generally refers to a rule of evidence requiring the production of an original material evidence, whether a document, writing, recording or photograph as evidence of its content unless another statute provides an exemption, or the court is satisfied with the explanation given for the absence of the original material (Miller, 2012).
- Historical origin of the best evidence rule.
i. The best evidence rule traces its origin from the ancient roman society (DeSilva, 1999).
ii. The rule’s evolution under the English common law
iii. The modernization of the best evidence rule in the U.S under Article X of the Federal Rules of Evidence.
iv. The reason for the rule’s implementation under the U.S court system (Miller, 2012).
II. Rationale for the application of the best evidence rule in the U.S
- To ensure that the party seeking to rely on the contents of a photograph, document, or recording bears the sole responsibility of bringing if before the court in evidence (Leubsdorf, 2010).
- To reduce the possibility of bringing fraudulent documents before the court.
- Creates an incentive for the parties to bring superior evidence before the court (Miller, 2012).
III. Case review on wire tapping
- Olmstead v. United States 277 U.S. 438 (1928): Wiretapping did not infringe on the Fourth Amendment and thus were admissible in court as evidence.
- Nardone v. United States 308 U.S. 338 (1939): Wiretapping evidence obtained by a breach of the Communications Act of 1934 was inadmissible as evidence.
- Goldman v. United States 316 U.S. 129 (1942): Divulgence of a person’s communication by use of a Dictaphone did not violate the Communications Act.
- Berger v. New York 388 U.S. 41 (1967): New York statute allowing the use of eavesdropping equipment was too broad and infringed on the Fourth Amendment rights.
- Katz v. United States 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967): The Fourth Amendment operates to protect the person not the place. As such evidence obtained from a public phone booth by wiretapping was admissible in evidence.
IV. The current status of wiretapping restrictions
- Wiretappings are admissible in evidence provided they do not infringe on a person’s Fourth Amendment right safeguarding against illegal searches and seizure.
- Wiretappings must not violate the Communication’s Act of 1934.
V. Rules for packaging and preserving wiretapped evidence, United States v. McKeever, 169 F. Supp. 426 (SDNY 1958)
- One must obtain the court’s permission, or a party’s consent if in a civil suit, before wiretapping (Stevens and Doyle, 2008).
- The device must be functioning and operated by a qualified person.
- The recording must be correct and genuine.
- The recording must not be edited.
- The identity of those recorded must be capable of being verified.
- The recording must be preserved in a way shown to the court.
- The recording must have been made in the absence of any inducement or threat.
VI. The relation between wiretapping and the doctrine of “fruit of the poisonous tree.”
- If wiretap evidence was obtained through an illegal manner, then the evidence of the wiretap will be excluded even if it provides evidence of additional crimes.
- The tapes can be admitted in evidence under the best evidence rule provided the court is given a reasonable explanation as to their disappearance.
- It must be proven that the copies satisfy the rules for packing and preserving wiretap evidence.
DeSilva. C. (1999). California’s Best Evidence Rule Repeal: Toward a Greater Appreciation for
Secondary Evidence, 30 McGeorge Law Review, 646-648.
Leubsdorf. J. (2010). Evidence Law as a System of Incentives. 95 Iowa Law Review, 1624-1661.
Miller. C. (2012). Evidence: Best Evidence Rule. New York; CALI eLangdell Press.
Stevens. G. & Doyle. C. (2008). Privacy: An Overview of Federal Statutes Governing
Wiretapping and Electronic Eavesdropping. Retrieved on 2 August 2012 from <http://graphics8.nytimes.com/packages/pdf/topics/privacycrs1.pdf>
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