Hypothetical Scenario: Assume I am an investigator and I have an open investigation on 'Ding' for whatever reason. I have a full surveillance detail on 'Ding' that includes Title III, Video Surveillance, at home, work, car, the works. We even have top of line classified subvocal speech technology that allows us to see what 'Ding' says to himself in silence. During the investigation, I buy a pre-paid cell phone and I use it to text 'Ding' hoping to intimidate him or harass him a little, spook him some. I dump the phone after that. At the same time, we use our cellphones to text each other concerning the investigation. Years pass, we arrest 'Ding'. Years pass... again. Evidence discovery looms in the horizon. Defense counsel makes a motion for the investigative notes. Prosecutor says: What notes? We have no notes! Defense counsel replies: The text messages your investigator's sent to my client and to each other! Prosecutor's mind goes blank. Text messages are not discoverable investigative notes, he/she says. Defense counsel smiles and hands a copy of a motion to dismiss based on the fact that text messages are investigative notes just like handwritten notes or taped voice notes for purposes of discovery. They were supposed to be kept and failure to do so deprives 'Ding' of his right to a fair trial. Assume you are the prosecutor, defense counsel and judge. What are the arguments in favor and against? What would your decision be as judge?
Good Day ,
I am a US Attorney and I’ll be answering your question today. My advice is restricted to advice surrounding the general principles of law governing your issue and you should not act on this advice but seek further clarification from a specialist in your County.
The defense will be arguing that the failure to provide the defense with the investigative notes amount to a breach of the due process clause of the 5th and 14th amendments and hence that basic procedural due process has not been afforded to the defendant in the deliberate destruction of the text messages and the phone.
The prosection will be arguing toi the contrary that this was unintentional and that no evidece is being offered in relation to the text messages and hence, the messages were non-discoverable in anycase.
The Judge must decide whether the the destruction of the phone and texts has infringed the due process clause, ie whether any evidence within the texts might help the accused in establishing his innocence or whether the officers's investigation was illegal/unconstitutional and whether subsequent evidence obtained should be unadmissible as being the fruits of the poisonous tree doctrine.
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So text messages can be deemed investigative notes? Ever encountered this situation before? Do you have case law for this? Also, would corruption or activity contrary to law evidenced in the text messages would make these text messages subject to discovery? How about if the text messages are corroborating evidence of the defense version of events?
I think i'll let another expert have a look at this. My take is that yes they are investigative notes and that there was a deliberate destruction of the phone violating the accused's rights.
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Thank you counselor
Here are some links and principles that will assist you constructing your hypothetical arguments:Commonwealth v. Koch - Pennsylvania Supreme Court held that both authentication and admissibility must be addressed in determining whether text messages are admissible in a criminal trial. The text messages in this case were not admissible as hearsay was because the Commonwealth was not able to show who the author of the messages was. It is not enough to show that the account belongs to a person because other people can have access to accounts as noted by the Court.
Rodriguez v. Nevada Nevada Supreme Court held that text messages should not have been admitted into evidence absent evidence that corroborated that the defendant was the sender of the messages. Authentication is the precursor to admissibility so, whether proponent or opponent, the first step is whether a proper foundation has been laid that authenticates the message. COMPULSION OF TEXT MESSAGES http://www.bu.edu/law/central/jd/organizations/journals/bulr/documents/KEMPER.pdfAnti-Wiretapping Law -To protect the privacy of communication, Congress enacted the Anti-Wiretapping Law. Under this law, it is “unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or walkie-talkie or tape recorder, or however otherwise described.” (Section 1).
Section 4 of the law provides that any communication or spoken word, or the existence, contents, substance, purport, effect or meaning of the same or any part thereof, or any information contained therein obtained or secured by any person in violation of the foregoing provision shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation.
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Followup question: Would video surveillance taken from u/c vehicle fall under the definition of 'investigative notes'?
Ok can such video be subpoenaed even though is not investigative notes?
Victor was robbed and beaten by a man wearing a rubber