Wiretaps/Surveillance Detection

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Victims of Wiretaps and Electronic Surveillance It is illegal and actionable for a third person to intercept or record your private communications, conversations, and stored electronic data. This criminal conduct can range from a wiretap to listen in on phone conversations, interception of email communications, and even programming your cell phone to to act as a "bug" when you are not using your cell phone. In this electronic age, one can expect that illegal surveillance will only increase as surveillance devices become cheaper and more readily available. But these eavesdroppers can be made to pay a price. If your right to privacy has been violated by a wiretap or other unauthorized interception of electronic data or communications, your rights under the federal Wiretap Act, 18 U.S.C. secs. 2510-2522. Do not overreact. Beat them at their own game. Read this page and call my office. If you question whether you are under surveillance, read "Am I Under Surveillance?"

Victims of wiretaps and intercepted communications can turn the tables on their perpetrators. Federal law provides for civil damages starting at a minimum of

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$10,000. Many juries would consider the invasion of privacy alone to be worth more than that. Wiretaps are illegal unless very stringent warrant procedures are followed. Wiretap and similar evidence, if illegally obtained, is never admissible in any federal, state or local court. Even the attempt to use such illegally obtained evidence will result in civil damages in favor of the victim. I see wiretap cases in primarily in divorce and business settings, but they can arise anywhere. In the field, detecting wiretaps and other methods of intercepting private conversations and data is called "Technical Surveillance Countermeasures," or TSCM. If you believe you may be the victim of a wiretap or other interception of private information, call me immediately to discuss your options. I will assist you in obtaining an investigator and guide you through the process to determine if you have a case. A leading investigative firm in detection of wiretaps and other surveillance is International Investigators, Inc., providing nationwide TSCM services. Tim Wilcox is an expert in all aspects of TSCM. Learn more about TSCM by clicking International Investigators, Inc.

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Inmate or prisoner wiretaps create special issues of consent under the Wiretap Act. If you are incarcerated or phoning someone who is, assume that your conversations are recorded and will be used against you. Click here to learn more. LISTENING IN: THE USE OF AUDIO RECORDINGS IN FAMILY PROCEEDINGS Bari Brandes Corbin, Evan B. Brandes Divorcing couples and those sparring over child custody rights are often tempted to record their spouses (present or former) conversation. After asking, "Is my husband in

calling a paramour the middle of the night?" or, "Is my ex-wife badmouthing me to my kids?', they may conversations. decide to record others'

These recorded discussions, they are sure, will help them to obtain a divorce, get a

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better marital settlement or get exclusive custody of a child. ADMISSIBLE VS. INADMISSIBLE When people like those described above come to you, the family law attorney, with the evidence, you may have to deliver some disappointing news. Recordings of these husband/paramour and mother/child conversations are inadmissible in court because they are the fruit of what, under New York law, is criminal eavesdropping -- none of the parties to the conversations have consented to the recording. Civil Practice Law and Rules s 4506 provides that evidence obtained by the commission of criminal eavesdropping, as defined by Penal Law s 250.05, is inadmissible in both civil and criminal cases. Penal Law s 250.00 states that a person is

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guilty of eavesdropping when he unlawfully engages in wiretapping or mechanical overhearing of a conversation. "Wiretapping means the intentional overhearing or recording of a telephonic or telegraphic communication by a person other than the sender or receiver, by means of any instrument, device or equipment. ... Mechanical overhearing of a conversation means the intentional overhearing or recording of a conversation or discussion, without the consent of at least one party thereto, by a person not present thereat, by means of any instrument, device or equipment." In Berk v. Berk, 70 AD 2d 943 (2 Dept 1979), for example, the court granted a mother's motion to suppress, pursuant to Civil Practice Law and Rules s 4506, certain taped telephone conversations between the mother and children, obtained without the mother's consent.

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The Appellate Division held that "Without proof of consent of at least one party to the conversations, the taped conversations may not be put into evidence." Some tape recordings of discussions are not the result of illegal eavesdropping; as long as the recording is made with the consent of one party to the conversation, it is a lawful recording. Thus, your client is allowed to record his or her own conversation with any other person, including a threatening spouse or one who admits adultery. When an admissible recording helps your client's case, you need to know the rules for getting it into evidence. LAYING A FOUNDATION FOR THE ADMISSION OF SOUND RECORDINGS Sound recordings of relevant events are admissible in evidence as long as a proper

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foundation is laid. In People v. Ely, 68 NY2d 520 (1986), the Court of Appeals held that there are four different ways to authenticate sound recordings of conversations. The court noted that the admissibility of a tape-recorded conversation requires proof of the accuracy or authenticity of the tape by clear and convincing evidence establishing that the offered evidence is genuine and that there has been no tampering with it. The necessary foundation for the admissibility of sound recordings may be provided by: 1) the testimony of a participant conversation who can state that it is a complete and accurate reproduction conversation and has not been altered; 2) in the

of

the

the testimony of a witness to the conversation or to its recording, such as the machine's operator, that it is a complete and reproduction of the conversation and has accurate

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not been altered; 3) testimony of a participant in the conversation, together with proof by an expert witness that after analysis of the tapes for splices or alterations there was, in his or her opinion, no indication of either, or; 4) a chain of custody method which requires, in addition to evidence concerning the making of the tapes and identification of the speakers, that within reasonable limits those who have handled the tape from its making to its production in court can identify it and testify to its custody and unchanged condition. The fourth method may be used when no auditor of the conversation is available. People v. Ely, 68 NY2d 520 (1986). The foundation for sound recording requires a showing that the entire tape is complete, accurate and free from alteration. These requirements cannot be avoided by

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introducing only isolated portions of tape to prove a particular prior inconsistent statement of a witness who testifies at trial. People v. Joyner, 240 AD2d 282 (1st Dept. 1997). A sound recording is not admissible if it is so inaudible and indistinct that a jury must speculate as to its contents. People v. Carrasco, 125 AD2d 695 (2d Dept. 1986); People v. Harris, 199 AD2d 636 (3d Dept, 1993). A recording is sufficient if an independent third party can listen to the recording and produce a reasonable transcript. People v. Carrasco, supra. If the recording media is sufficiently audible, fair and accurate as to material events recorded thereon, the presence of some inaudible portions will not preclude its admissibility. See, e.g., People v. Morgan, 175 A.D2d 930, 932 (2d Dept. 1991); People v. Harris, supra. These infirmities "go to the weight of the evidence, not its admissibility." People v. McGee, 49

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NY2d 48, (1979); People v. Wilson, 207 A.D.2d 463 (2d Dept. 1994).

PROVING IDENTITY The identification of the voices on the tape is another condition to the admissibility of a sound recording. A witness may testify that he recognized a person's voice as being that of the defendant's husband, whether he heard it in person, over the telephone, or by some other mechanical or electronic means. The Court of Appeals has also held that a voice heard may be compared with the voice of a speaker whom one meets for the first time as well as with the voice of a speaker whom one has known before. People v. Dunbar Contracting Co., 215 NY 416, 422 (1915). In ascertaining the identity of the voice on a tape recording, the

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remoteness of the personal conversations between the identifying witness and defendant from the time of the voice identification affect the weight, rather than the competency, of the evidence. People v. Dinan, 15 AD2d 786 (2d Dept.), aff'd, 11 NY2d 350 (1962). A telephone caller's identity may be established by the substance of the conversation. For example, where the caller refers to matters that only a particular person could have known about, this fact may be used to establish the identity of the caller. People v. Lynes, 49 NY2d 286 (1980). When a witness testifies to the identity of a person to whom he has placed a call, he may be able to make the identification on the basis of familiarity with the recipient's voice. People v. Dunbar, supra. See also People v. McDermott, 160 Misc.2d 769 (Dist.

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Ct. Nassau Co.1994) ("If the witness was not acquainted with the speaker, and, therefore, did not recognize his voice at the time of the telephone conversation, the telephone conversation is admissible if the witness testifies that she met the speaker thereafter and then recognized his voice as the voice she had heard over the telephone"). In People v. Lynes, the court stated: Thus, in part on the theory that the customary mode of operation of telephone users provides some assurance of reliability, in some instances the placing of a call to a number listed in a directory or other similarly responsible index of subscribers, coupled with an unforced acknowledgment by the one answering that he or she is the one so listed, has been held to constitute an adequate showing.

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Thus, even if the witness has no familiarity with the recipient's voice, the identification of the speaker may be made on the basis of circumstantial evidence. TRANSCRIPTS AS TOOLS Finally, if a recorded conversation is admitted into evidence, it may also be helpful for the jurors to be able to view a transcript of it. A recorded conversation is considered a form of demonstrative evidence that "illustrates" the recording (People v. Feld, 305 NY 322 (1953)), so the court can allow the jury to view a transcript of the recording while listening to it (People v. Tapia, 114 AD2d 983 (2d Dept. 1985)).

CONCLUSION They say a picture is worth a thousand words. So, too, a recording of an unguarded

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conversation may be worth a lot more than an opposing party's carefully worded testimony. As we have seen, weeding out the admissible from the inadmissible recorded conversations is a pretty straightforward affair. As long as at least one party to the discussion consents to the making of the recording, it may be admissible. All it takes is relevance and the laying of a proper evidentiary foundation. With these, the opposing side's own words may prove to be some of your client's most valuable evidence. FNa1. Bari Brandes Corbin, a member of this newsletter's Board of Editors, maintains her offices for the practice of law in Laurel Hollow, NY. She is co-author of Law and the Family New York, Second Edition, Revised, Volumes 5 & 6 (Thomson-West). Evan B.

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Brandes, also a member of this newsletter's Board of Editors, maintains his office for the practice of law in New York, NY. Both are VicePresidents of Joel R. Brandes Consulting Services Inc., Jersey City, NJ, and Ft. Lauderdale, FL (www.brandeslaw.com or www.nysdivorce.com), and editors of its Web sites. They both co-author the annual supplements to Law and the Family New York, Second Edition, Revised. (c) Copyright, 2009. Joel Consulting Services, Inc., Bari Brandes R. Brandes

Corbin and Evan B. Brandes. All rights reserved.

“The fundamental problem with English law is that you can have all these rules for concealing evidence, and you can have all this intellectual dishonesty that

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goes on in the courts, and the stupefying unreality of what goes on in courts.” Evan Whitton author of the Cartel: Lawyers and their Nine Magic Tricks1 “[the exclusionary rule] rests on the absurd proposition that a law enforcement error, no matter how technical, can be used to justify throwing an entire case out of court, no matter how guilty the defendant, or how heinous the crime. ...the criminal goes free, the officer receives no effective reprimand, and the only ones who really suffer are the people of the community.” Ronald Wilson Reagan2 “Ever since Jeremy Bentham wrote his scathing critique of the law of evidence, both philosophers and legal scholars have criticized the exclusionary rules of evidence, arguing that formal rules excluding entire classes of evidence for alleged unreliability violate basic epistemological maxims mandating that all relevant evidence be considered. Although particular pieces of evidence might be excluded as unreliable, they argue, it is a mistake to make such judgments for entire categories, as opposed to making them only in the context of particular pieces of evidence offered for specific purposes.”

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“Epistime, 2008” Encyclopedia Britannica Online

Exclusionary Evidence Exclusionary3 evidence (for lack of a better name) is evidence which, by law, is not allowed in a criminal prosecution even though there may be no claims against its authenticity. Ie. There would be no reason to believe the witness is lying or that the physical evidence is artificial or otherwise misleading. Some examples would be: Hearsay Second hand testimony heard from another party who is no longer available to attend court. Opinion An opinion on actions performed relevant to the case at hand made by a non-expert. Evidence deemed irrelevant Privilege Evidence given by a lawyer incriminating his/her client. Evidence forced to be given by a Priest received in confession by a penitent. Evidence forced to be given by a witness incriminating his/her spouse.

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Evidence forced to be given by a child incriminating his/her parent if crime was not of a serious nature. Disposition and Character Evidence, including the conclusions of either criminal or civil proceedings, not directly connected to the case at hand, but implying or declaring the accused has a less than favourable character. (This however can be introduced in response to positive character evidence introduced by the defence.) Public interest State secrets Evidence which has been obtained illegally or improperly. „Fruit of the Poisoned Tree‟ evidence – evidence which has itself been obtained legally but the information to lead to such discovery was obtained illegally or improperly. Prejudicial Evidence Evidence which of itself is otherwise legal but is deemed by the court that its prejudicial effects would outweigh its probative value. Ie. The evidence would be relevant to the case but the court (the judge) has decided that the jury would not be intelligent enough to grant it its proportionate value but instead would estimate it to be more incriminating than the alleged correct estimation of the court.

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From this list there are certainly some categories that many would think are justifiable. Someone who is not a proven expert should not be allowed to give an opinion that would not be based on sufficient acquired knowledge. Privilege „without prejudice‟ privilege- what is said between parties in attempting to negotiate a settlement cannot be used against either party back in court. marital privilege- protecting conjugal confidences clergy and communicant privilege doctor and patient privilege State secrets Confessions made under duress. However that still leaves numerous categories of evidence, which, when excluded, works against the original „the truth will out‟ principle traditionally utilized for any important public hearing, especially one held to prosecute crime for the worthy goals of maintaining law and order. Glossary Direct evidence Evidence based on personal knowledge or observation that, if true proves a fact. Eg witness

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testimony, video or audio recording of the crime, DNA evidence. Circumstantial evidence Indirect Evidence that creates, through reasoning, an inference that a particular fact exists. Eg the lack of an alibi at a time when the accused would normally have one; inability to reasonably explain the possession of a large amount of money, a working knowledge of the type of weapon that the victim died from. Corroborating evidence Supplementary evidence that tends to strengthen or confirm the initial evidence Demonstrative evidence Physical evidence that can be seen and inspected Forensic evidence Evidence collected and studied through the use of sciences and other specialised knowledge such as biology, chemistry Exclusionary Rules of a Questionable Nature Evidence Obtained Illegally or Improperly Sometimes known as the „disciplinary principle‟, the reason given to deny this type of evidence is that it will discourage improper police methods. The improper police methods referred to are those which

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violate every citizen‟s civil rights to privacy; to quote a certain constitution: “…to be secure in their persons, houses, papers and effects against unreasonable searches and seizures…” Two questions need to be asked about this manner chosen to defend our liberties: #A Isn‟t there a lot of overkill involved? Yes, it is important that we retain our privacy with regards to our persons and our homes, but should it be at the cost of letting the most heinous wrongdoers amongst us walk free? As an analogy, drink driving is a scourge of our roads that causes the deaths and maiming of many innocent people, however would that justify us instituting capital punishment for those drivers caught over the alcohol limit? Surely there can be lesser disciplinary actions that would still prevent those in authority from abusing their powers? #B What Comeback do the Innocent Have? If through carelessness the police fail to obtain the correct address for a search warrant and a law abiding family have to needlessly suffer the disruption of a top to bottom house search, or if police intentionally stop and inspect a vehicle without due cause but merely for the sake of harassing the driver they may feel

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prejudiced against, then as the victims have committed no crime that they can be pardoned for, what options for redress are open to them? How things should be Would not a simpler and much more justice orientated solution to this problem of controlling police behaviour be that anyone who has had his rights violated due to illegal police action, could summarily receive from the police department (perhaps with the individual officer responsible paying a share) damages according to a pre-set scale? (A search without a warrant could be at the higher end of the scale while one done with warrant but exceeding the warrant‟s parameters would be at the lower.) Over time the scale could be raised or lowered in accordance with the rate of violations still occurring. The general public would probably have little complaint about a convicted rapist murderer receiving $10,000 in compensation for an illegal search, if they knew he had still been justly convicted and sentenced for his ghastly crime. Disposition and Character Evidence

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Some legal commentators have stated that character evidence (criminal record, etc.) should not be allowed in court because it is simply irrelevant. “As a general rule evidence of any prior convictions of the accused is not admissible. This ensures the jury judges the case on its merits without prejudging the accused on a previous record.4” Of course this is patently ridiculous. People should be judged by their conformity, their honesty, their inhibitions or their lack thereof. To commit a crime one needs opportunity, ability, motive and one more very important factor: a lack of inhibition to break the law. We are not all of the type to take advantage, at the expense of the innocent, of any situation that may unexpectantly arise. That is the reason lost untraceable but valuable property is occasionally handed in to police stations; why potential victims in vulnerable situations are not taken advantage of. If an accused has instances of honesty or dishonesty in his or her history then even though it obviously is not direct evidence conclusive of innocence or guilt5, it is nonetheless relevant: something to be added to other direct or circumstantial evidence presented to aid the jury to coming to their final conclusion.

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Circumstantial versus Direct One tactic often used to discredit character evidence is to claim that a previous conviction does not mean that the accused must have done it this time. “One of the most obvious dangers, and one which varies in degree depending on the facts, is that the fact-finder will erroneously conclude that because a person has a tendency to behave or think in a particular manner, he or she must have acted or thought in the same or similar manner on the occasion which is the subject of the proceeding.5” (emphasis added) This is quite true. It does not mean that the accused must have done it. It does however mean that there is a higher likelihood than normal that the accused did it. This is precisely the difference between direct and circumstantial evidence. Defenders of the law, using what is known as the „straw man‟ argument, claim that as character is not direct evidence it should thus be thrown out. The fact is however, no one claims it is direct evidence; it is merely circumstantial evidence, and as such should be allowed in. Questions to be asked

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If criminal history is indeed irrelevant in the determining of guilt this does lead to a number of questions. A. “If for example the prior acts of a party show that person to possess a moral conviction to act fairly at all times one would expect that party to give truthful evidence and also one would doubt such a person would act so as to mislead…”6 Is the law so blatantly hypocritical that evidence of good character is relevant but bad character not? Of course it is true that good character should be given more weight than bad character. Someone who has handed in lost valuables would in probability not at a later date commit theft, but there may be a number of reasons why someone who has stolen before, still decides not to steal at a later opportunity: he did not in fact recognise the opportunity; he suspected the opportunity was police entrapment; he had other things on his mind. However despite that, the fact remains that one with no inhibitions against committing a crime is more likely to do so than the average person, and this, therefore, is relevant. B.

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If a person‟s past is irrelevant to how they act in the future then why is it that: In Victoria a person is disqualified from becoming or remaining as a local government Councillor if they have been convicted of an offence committed when they were 18 or more years of age which is punishable upon first conviction for a term of imprisonment of 5 years or more anywhere in Australia. The disqualification lasts for seven years. (Section 28, Local Government Act 1989 Vic) The Commonwealth Constitution states that persons convicted of offences which are punishable by one year of imprisonment or longer cannot hold a seat in Federal Parliament. (S44(ii)) People who within the last five to ten years have been imprisoned are automatically barred from jury service9. Australians wishing a UK visa for more than six months will be automatically prevented if they have spent more than 6 months in jail within the last 10 years9. C. Why do Civil law countries such as France give juries the criminal history of the accused?

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“My reading suggests that even those comparative lawyers who are critical of the French criminal law do accept that French courts are fair, and that the verdict reached is generally accurate.” Justice James Burchett, Australian Federal Court, 199612 D. Why is criminal propensity (sometimes described in statute as “tendency”) allowed to be presented against an alleged wrong doer in Australian civil courts when one party, for example, may be suing another party for assault? Section 101 (1) Commonwealth Evidence Act 1995. The issue of admitting criminal history is debated at the International Debate Education Association on the web at http://www.idebate.org/debatabase/topic_details.php? topicID=204. The following contemporary quotes from a judge and an academic show that there definitely is belief in the relevance of criminal history. “The courts have traditionally viewed with great suspicion any attempt to use character or dispositional evidence for this purpose [proving guilt]. In so doing, the courts are not suggesting that the

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accused‟s behaviour on other occasions is not relevant to the facts in issue, but rather ……”7 “[T]he reason for this general rule [excluding character evidence] is not that the law regards such evidence as inherently irrelevant but that it is believed that if it were generally admitted jurors would in many cases think that it was more relevant that it was, so that, as it is put, its prejudicial effect would outweigh its probative value.”8 Prejudicial Evidence “The law, as we all know, recognises a judicial discretion to exclude admissible evidence on the basis that its prejudicial effect outweighs its probative value. The rule is described as the “Christie exclusion” from the case R v Christie [1904] AC 545.”10 This is the famous, or infamous, legal concept recognized in common law jurisdictions where valid evidence can be excluded if the judge believes the jury are not as intelligent as he or she is to be able to take evidence of similar facts or bad behaviour into its correct context. We are to believe that not just some members but the majority of a jury are hot under the collar rednecks who will lose all reason and become inflamed at certain possibly incriminating evidence.

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Perry v R (1982) 44 ALR In 1982 a Mrs Emily Perry was tried and convicted of attempting to murder her husband by poison. The prosecution evidence against Perry was not only that her husband suffered arsenic and lead poisoning while living with her and that she was the beneficiary of a number of insurance policies on him, but more significantly, over the previous eighteen years three other people who had lived with Perry had also died from ingesting harmful substances, two from poison and one form an overdose of barbiturates. The deaths of two financially benefited Perry. The conviction was appealed to the Australian High Court on the grounds that the evidence of the three deaths should not have been allowed in court. The decision of the court was far from unanimous, with some judges declaring that evidence of the non poison and the non- financial benefiting deaths should not have been allowed. Justice Lionel Murphy, the only High Court judge to be tried for perverting the course of justice, held that all the evidence should have been excluded. The appeal was subsequently allowed and Emily Perry was freed.

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One‟s immediate reaction to becoming aware of this case, might be to hope that to celebrate her release, Mrs Perry took Lionel Murphy home to dinner, but after first arranging to take out a substantial insurance policy on his life. Reasons Various reasons have been put forward by judges and academics to defend this practice of excluding evidence when no other avenue is available. One reason is that it creates undue suspicion against the accused and undermines the presumption of innocence ( Perry v R (1982) per Murphy J; Reg. v. Boardman (1975) AC per Lord Hailsham; Another is that tribunals of fact, particularly juries, tend to assume too readily that behavioural patterns are constant and that past behaviour is an accurate guide to contemporary conduct (89 Cowen and Carter, Essays on the Law of Evidence, (1956) at 144-145; Imwinkelried, "The Use Of Evidence Of An Accused's Uncharged Misconduct To Prove Mens Rea: The Doctrines which Threaten to Engulf the Character Evidence Prohibition", (1990) 51 Ohio State Law Journal 575 at 581-582; Ligertwood, Australian Evidence, 2nd ed (1993) at 81-82; Palmer, "The Scope

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of the Similar Fact Rule", (1994) 16 Adelaide Law Review 161 at 169) . Similarly, "(c)ommon assumptions about improbability of sequences are often wrong" (90 Perry (1982) 150 CLR at 594 per Murphy J), and when the accused is associated with a sequence of deaths, injuries or losses, a jury may too readily infer that the association "is unlikely to be innocent" (91 ibid) . Another reason for excluding the evidence is that in many cases the facts of the other misconduct may cause a jury to be biased against the accused (92 R. v. Bond (1906) 2 KB 389 at 398 per Kennedy J; Piragoff, op.cit. at 4-5; Cross on Evidence, 2nd Aust. ed. (1991) at par.21145; Ligertwood, op.cit. at 81) . In the present case, for example, once the evidence was admitted, it would require a superhuman effort by the jury to regard the appellant as other than a person of depraved character whose uncorroborated evidence, whether or not he was guilty, could not be acted upon except where it supported the prosecution case. How Things Should Be As in most European Civil law countries, allow in any evidence of the accused‟s history. If the defence truly believe that this evidence deserves less weight than it first appears at face value, then they must have a reason. Perhaps some scholars they have read have

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given reasons why the specific evidence is only of limited value. In that case the defence counsel are certainly free to inform the jury of these reasons. The truth will out. Responses to Comments Exclusionary Evidence and Questions about

Allowing the accused‟s criminal history to be introduced would undermine the presumption of innocence. At the very beginning of a trial effort is made to pick a jury who so far have no preconceptions about the accused. This is what the presumption of innocence means. It is ridiculous to declare that the presumption should always remain after the prosecution is allowed to introduce evidence. If evidence is invalid, such as non-expert evidence, then it should be denied because it is amateurish and has no authority, not because it undermines the presumption of innocence. Juries tend to assume too readily that behavioural patterns are constant and that past behaviour is an accurate guide to contemporary conduct. One wonders how anyone could possibly obtain empirical evidence of this? Researchers, or any other scholars, are never allowed into the jury room, and

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besides, just who is to say what is the correct degree of accuracy of past behaviour that jury beliefs should be measured against? One of the great virtues of a jury is that there can be up to twelve opinions on any piece of evidence. Some jurors may even believe, like unfortunately too many judges, that the accused‟s very long history of similar crimes has absolutely no relevance upon the matter at hand. The jurors can then bring their combined life experiences to bear to debate the issue and hopefully come to a common decision. As legal commentator Evan Whitton so astutely noted in his book The Cartel: Lawyers and their Nine Magic Tricks, when well known New York mobster John Gotti was criminally prosecuted in 1990, the jury was given ample evidence, though wiretaps, of his criminal connections and general operations but nothing actually specific about the crime he was charged with. As the foreman later said (jurors in the United States are allowed to speak publicly after the trial) “I have to admit that voting not guilty was a very unpleasant result for me. I felt truly that he was guilty as hell but I have to admit that the evidence just didn‟t hold up.”11 If a jury hears of an accused‟s three previous convictions for rape they may develop a hatred of him and simply convict him for his past crimes immaterial of what they think about the current charge.

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If a person has served fifteen years for a crime then even if you might not want to associate with them surely all the hate you would have originally held for him has been expunged by the suffering they served during their fifteen years of incarceration. Even if one or two of the jury still wanted him to suffer that is not enough to convict. Hopefully the majority, especially after they have been asked if they can be impartial in the current case, are not the type who fester and carry irrational grudges with accused people they have just met.

1. The Law Report ABC Radio, 24th March 1998 2. Reagan, Ronald as quoted in Evan Whitton, The Cartel: Lawyers and their Nine Magic Tricks, p146 3. There is a concept in law known as the „Exclusionary Rule‟ which, for some reason, relates only to the exclusion of so called Public Interest evidence, despite the whole list of categories of evidence -as shown- that can, by law, be excluded from a jury‟s deliberation. 4. Short G, Gomularz J and Orlando-Mercuri A, „Fair Go: Units 3 and 4 Legal Studies‟, Law Institute of Victoria, Melbourne, 1994, p232.

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5. Arenson, Kenneth, Propensity Evidence in Victoria: a Triumph for Justice or an Affront to Civil Liberties?, Melbourne University Law Review 12[1999], 6. Wilson RB, LBC Nutshell: Evidence, LBC Information Services, Pyrmont, 1999, p.55. 7. McNicol S and Mortimer D, Evidence, Butterworths, Melbourne, 1996, p.116. 8. Lord Cross of Chelsea, in Director of Public Prosecutions v Boardman, [1975] AC421 at p,456. 9. http://www.activistrights.org.au/cb_pages/criminal_aff ect.php 10. Peter Davis, Senior Counsel Queensland and Mark Dight, Barrister DPP Victoria, „Similar Fact Evidence and Relationship Evidence‟ http://www.barweb.com.au/Upload/FCK/Pater%20Davi s%20SC%20-%20LECTURE.pdf 11. Whitton, Evan The Cartel: Lawyers and their Nine Magic Tricks, p106 1. 2. Whitten, Note 11, p175. COPYRIGHTS & CAMPAIGNS BEN SHEFFNER'S NOTES ON COPYRIGHT, FIRST AMENDMENT, MEDIA, AND ENTERTAINMENT LAW, AND POLITICAL CAMPAIGNS WEDNESDAY, JULY 22, 2009

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Court denies motion to suppress MediaSentry evidence; calls Tenenbaum's wiretapping argument 'bizarre' Judge Nancy Gertner has denied Joel Tenenbaum's Motion to Suppress all evidence collected by MediaSentry. She ruled: MediaSentry's activities from outside Massachusetts in collecting evidence regarding Tenenbaum's Kazaa use in Rhode Island do not implicate Massachusetts private investigator or wiretapping laws. Even assuming that evidence was collected in violation of law, the remedy is not suppression in this case, but instead is a suit against those who allegedly engaged in the illegal acts. MediaSentry did not engage in illegal wiretapping, since Tenenbaum voluntarily exposed the contents of his shared folder to other Kazaa users. The court described the wiretapping argument as "bizarre." As far as I'm aware, every court to have considered arguments against the admissibility of MediaSentry's evidence has rejected them. MediaSentry essentially surfs the Internet and makes note when it detects potentially illegal activity. For such activity to require private investigation licenses or to be characterized as "wiretapping" would indeed be "bizarre," and would potentially criminalize what millions of people do every day. I can only surmise that those who

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continue to press these arguments are so blinded by RIAA Derangement Syndrome that they fail to see this. Here's Judge Gertner's order: Judge Nancy Gertner: Electronic ORDER entered denying [853] Motion to Suppress. "The Defendant raises a number of arguments why MediaSentry's monitoring was illegal under state and federal wiretap laws, as well as state licensing requirements for private investigators. See Mass. Gen. L. ch. 272, s. 99(A); Mass. Gen. L. ch. 147, s. 22. Given that MediaSentry did not conduct its monitoring from Massachusetts, does not maintain a presence in the state, and the computer on which MediaSentry detected Tenenbaum's file-sharing was located in Rhode Island at the time, Massachusetts' wiretapping and licensing provisions would not seem to reach the conduct at issue at all. See Connelly Aff. (document # 866-5); Cox Comm. Subpoena Resp. (document # 8669). Regardless of which state's licensing requirements are invoked, the Court previously considered a similar motion to strike in London-Sire Records, Inc. v. Arista Records LLC, Case No. 04-12434, holding that "[n]either the rules of evidence nor the Fourth Amendment bar the use of evidence arguably unlawfully obtained by private parties in their private suits." Jan. 9, 2009 Mem. and Order at 3-4 (document #

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230). Tenenbaum's remedy for a search he believes illegal under state laws is not exclusion of this evidence, but a separate action against MediaSentry or its employer under the state statutes he identifies. That leaves only the federal wiretapping provisions. See Electronic Communications Wiretap Act, 18 U.S.C. 2510 et seq. Here, Tenenbaum proposes a difficult analogy when he compares MediaSentry's activities to illegal eavesdropping. The Defendant made his computer's "shared folder" visible to the world of KazaA users, for the very purpose of allowing others to view and download its contents -- an invitation that MediaSentry accepted just as any other KazaA user could have. The electronic communications that ensued were conducted with the consent of both parties. As a result, it is bizarre indeed to describe MediaSentry's decision to examine and record its counterpart's IP address as eavesdropping, as though federal law prohibited MediaSentry from determining where the data sent to it from Tenenbaum's computer originated. It is as if one received a letter in the mail, but was not allowed to look at the return address.This principle makes no more sense on the internet than in the non-digital world, and it is not encompassed by the Act. The type of IP information transmitted by KazaA and recorded by MediaSentry is accessible to almost anyone with a

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computer. Even if viewed as an "interception" -- a characterization that the Court accepts here only as a hypothetical -- MediaSentry's monitoring activities fall within the statute's safe harbor for interceptions by a party to the communication. See 18 U.S.C. 2511(1), 2511(2)(d); see also R.I. Stat. s. 12-5.1-1 et seq. (oneparty consent rule parallel to the federal statute). Tenenbaum transmitted the digital files at issue to MediaSentry, making it a party to the communication, and he has not shown here that any interception occurred with the purpose of committing a "criminal or tortious act" under state or federal law. Id.; see also Order on Motions in Limine, Capitol Records Inc. v. Thomas-Rasset, Case No. 06-1497 (D. Minn. June 11, 2009). The Motion to Suppress MediaSentry Evidence [853] is DENIED." (Gaudet, Jennifer) (links added by me). POSTED BY BEN SHEFFNER AT 5:45 AM LABELS: COPYRIGHT, TENENBAUM 3 COMMENTS: AnonymousJuly 22, 2009 at 6:49 AM Perhaps less derangement syndrome and more messianic complex. http://en.wikipedia.org/wiki/Messianic_Complex Reply

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AnonymousJuly 22, 2009 at 9:50 AM Thanks for the links Ben, I was wondering what the judge meant when she cited London-Sire Records, Inc. v. Arista Records LLC, Case No. 04-12434, obviously she meant London Sire v. Doe. Reply FrancisJuly 24, 2009 at 1:34 PM Thanks for the updates. They're enlivening. Reply Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.

Spy on Your Spouse at Your Own Risk: Illegal Spying and Useless Evidence Posted on Apr 05, 2012 by Andrew Tatge In recent years, lawyers have seen an unbelievable increase in the amount of electronic data used as

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evidence in all lawsuits, including the use of e-mail, internet browsing history, blogs, information placed on social networking websites (MySpace, Facebook, etc.), GPS devices, cell phone and text/instant messaging, computer hard drives and other storage devices, digital photographs, etc. This increase is due, in part, to technology continuously improving, becoming cheaper, and more available. But what impact does electronic data have in a divorce setting? Several years ago, a survey conducted by the American Academy of Matrimonial Lawyers, 88% saw an increase in the number of cases using electronic data as evidence in the past five years. That survey found e-mail to be the most likely source of electronic evidence and found wives more likely than husbands to use electronic data. In relatively friendly divorces, electronic data has very little impact. However, in contentious divorces, the impact (and increased costs associated with the time, effort and expense of getting the information, reviewing it, and presenting it to the court) can be substantial. However, courts do not like it when parties attempt to engage in self-help discovery outside of the litigation process. Depending on what information you are obtaining, you may even be breaking the law since spying on your spouse‟s e-mail transmissions,

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internet usage, or phone conversations may violate state and federal communication privacy and wiretapping laws. The evidence also might not be admissible in court. Minnesota‟s Privacy of Communications Act specifically prohibits use of intercepted wire, oral, or electronic communications obtained in violation of the Act. Even if not barred, judges have a lot of discretion and rarely allow illegally obtained evidence. This does not mean that you divorce attorney can‟t or shouldn‟t seek electronic information as part of the divorce proceeding. They can and they should. Because of the importance of electronic evidence, the legal system has methods in place to allow parties to get information from each other. Generally speaking, courts are more than willing to allow parties access to relevant electronic evidence in divorce cases. Finding out that your spouse failed to disclose assets or other relevant information can be grounds for an award of attorney‟s fees or worse. It doesn‟t help the bad actor‟s credibility with the court either. In one case, Husband gave his old computer to the parties‟ daughter. Wife‟s attorney had a forensic examination of the computer and found very valuable hidden assets. In another case, Husband found information on Wife‟s MySpace page that allowed him

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to get full custody of the children. This and other information on the internet is extremely valuable and as long as it is readily available to anyone, obtaining it does not involve breaking the law. E-mails are also valuable. However, intercepting email or stealing your spouse‟s password to look at email is probably illegal. Some courts have found that viewing your spouse‟s e-mail after he or she has downloaded it and saved it to the family computer is legal and admissible, but before you do so, you should consult your attorney. It is never a good idea to begin spying on your spouse, or anyone else for that matter, without having a clear understanding of what you can or can‟t do. Do not find yourself on the wrong side of federal and state criminal or civil laws (such as trespass or invasion of privacy). Remember that you don‟t get around the law by having a friend or paid private investigator do the illegal act for you. Almost as important is that the ill-gotten information is not admissible in the divorce proceeding anyway. So, keep in mind the following: Don‟t use spyware or intercept your spouse‟s e-mails; Don‟t tape your spouse‟s conversations without his or her permission unless you are a party to the conversation; Don‟t plant bugging devices in your house;

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Do leave the information gathering to your lawyer. In the end, you‟ll be glad you did. Andrew M. Tatge is a business and family law attorney with Gislason & Hunter LLP (www.gislason.com) and can be reached at [email protected] or (507) 3871115. This information is general in nature and should not be construed as tax or legal advice.