Running head: PHASE 4 INDIVIDUAL PROJECT

Phase 5 Individual Project Hope Green Colorado Technical University November 5, 2013 Professor Reginald Jeter

PHASE 5 INDIVIDUAL PROJECT Phase 5 Individual Project The Best Evidence Rule The best evidence rule is a fancy legal term that means that the court would prefer to have an original document if possible. However, today, there is a rule that exists that says that a photocopy is just as good as long as it came from the same negative (Farlex, 2013). The definition of the best evidence rule is requires that to prove the content of a writing, an original is required (Federal Evidence Review, 2010, para. 2). The rationale behind

implementing the best evidence rule into the United States court system was relevant back in the 18th century when it first came to be; it is not very relevant now. Back then, most copies were handwritten by the clerk of the court. There were many mistakes made back then in those handmade copies and so that is why the best evidence rule was created and implemented, in order to reduce the amount of inconsistencies and mistakes made in handwritten copies. The best evidence rule is also thought to be the basis for the rule precluding the admissibility of hearsay evidenced, although the two rules are now quite distinct (Worldlawdirect.com, Inc., 2013, para. 4). Wiretapping Wiretapping is a type of surveillance that is done electronically by law enforcement. It plays a very important role in certain criminal investigations. Law enforcement intercept, monitor, and record conversations over the telephone and computer and cell phone if necessary after getting a warrant to do so by a judge (Maclin, T., 2002). Nardone vs. United States In Nardone v. United States, 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307 (1939), fruit of the poisonous tree was coined and used for the first time. Frank C. Nardone was convicted of

PHASE 5 INDIVIDUAL PROJECT smuggling and concealing and conspiracy to smuggle and conceal alcohol. It was stated that agents of the government intercepted his phone conversations and that it was a violation of the Communications Act of 1934 (47 U.S.C.A. 605). The main issue was whether or not the trial court was in error because it did not allow Nardones lawyer to cross examine the prosecution about how information obtained from an illegal wiretap was used against Nardone (Farlex, 2013). Olmstead vs. United States Olmstead v. United States was the first case to involve electronic wiretapping and to go before the Supreme Court. The judge said that a conversation was considered to be intangible;

therefore it was not included at the time in the fourth amendments search and seizure protection of the Constitution (Cederbaums, 1969). Goldman vs. United States In Goldman vs. United States, detectives used a detectaphone in the room next door to listen in on what was supposed to be a private conversation. The detectaphone was set up the day before because the detectives knew that the men would be in there discussing their criminal acts. In this case, the judge ruled that using a detectaphone was not a violation of their 4th Amendment rights (Legal Information Institute, n.d.). Unless I somehow have wrong information about the outcome of the case, I believe that I disagree with that ruling. In my opinion, the criminals, regardless of whether they were criminals or not were entitled to privacy. When they started talking about their crimes that day, it was understood and thought that the conversations would be private.

PHASE 5 INDIVIDUAL PROJECT Berger vs. New York In Berger vs. New York, Berger was charged and convicted of conspiracy to bribe the chairman of the New York Liquor Authority. The case that New York had against him was based upon information that was learned from eavesdropping by way of secretly concealing eavesdropping devices in two co-conspirators offices. The eavesdropping was however

authorized by Ex Parte court orders pursuant to section 813-a of the New York Code of Criminal Procedure. Berger claimed that 813-a was unconstitutional because it permitted the government to intrude in his private life (Fuller, J. R., 1967). Katz vs. United States 389 U.S.347, 88 S.Ct. 507, 19 L.Ed.2d 576 In Katz vs. United States, Katz was charged with transmitting information across state lines regarding wagers, but his conviction was later reversed. Katz was illegally recorded during a telephone conversation that took place in a public telephone9 booth; it was illegal because it violated his rights when he was recorded. His 4th Amendment rights were violated because when he stepped into the telephone booth to have that conversation, he expected it to be private, not for the whole world or government officials to hear what was said. This presents me with a question now, wondering why the judge in the case Goldman vs. United States did not rule in this same way. This does not seem right or fair to me, in both instances the people involved started those conversations out with the expectation that their conversation was going to be private yet the judge did not rule the same in Goldmans case as the one who did Katzs case. Summary of current wiretapping restrictions in regards to the above mentioned cases By the time that 1967 came around there was a new doctrinal approach for cases involving electronic surveillance intimated by the Courts ruling on two different cases. Berger vs. New York 388 U.S. 41 (1967) and Katz vs. United States 389 U.S. 347 (1967) were the two

PHASE 5 INDIVIDUAL PROJECT cases. The court was authorized in Bergers case to obtain the electronic surveillance used to

convict him. The reason that there was a claim that the statute was unconstitutional was because the judge issued the warrant without first requiring probable cause to be found, and because it did not require a timeframe as to the duration of the surveillance or the nature and the scope. In Katz vs. United States, 389 U.S. 347 (1967), it was determined that the old ways that search and seizure issues were analyzed would not be accepted anymore. The court did not rule based on the old ways to analyze search and seizure issues. In this case, the Court said that the 4th Amendment did not give people a right to privacy in general but that it protects our privacy against certain issues of government intrusion. It went on to say that the protection of the 4th Amendment was supposed to protect people but that it was not supposed to protect places. It further stated that the things that a person seeks privacy for such as a conversation held in private, should be free from intrusions by the government or law enforcement and was therefore protected under the 4th Amendment. Also accomplished under the Katz case was the end of the concept that law enforcement needed to physically trespass before they violated a persons 4th Amendment rights. In conclusion, the Court said that any wiretapping that took place without first securing authorization from a judge violated the 4th Amendment (Maclin, Tracey, 2002). The packaging and preservation of evidence derived from wiretapping There are certain legal standards that must first be met before you can legally submit audio evidence like a conversation that was recorded by a wiretap to a judge for review and use in a federal court (Demand Media, 2013). It is the federal court that will usually make the determination about whether or not the audio evidence that has been submitted will be allowed before the trial starts. Both counsels may submit as evidence any audio recordings that they have as well as any report they have obtained from an expert in audio evidence. The testimony of an

PHASE 5 INDIVIDUAL PROJECT expert in audio evidence is obtained in order to authenticate the evidence (Demand Media, Inc., 2013). In a number of cases, the attorneys question the expert in court so that the judge and the jury and everybody involved will know without a doubt that their testimony can be trusted because they are in fact an expert. This is sometimes called Voir Dire. At the close of this process, the federal judge makes a determination as to whether or not the expert is competent to testify and whether the audio evidence in question is going to be admissible or not (Demand Media, Inc., 2013). Evidence must follow the chain of command from the time that it is seized until the time that the suspect is either convicted and sentenced or deemed not guilty. If evidence is not properly handled, it is likely that either the whole case will be thrown out or at the very least the judge might say that the evidence is inadmissible. Wiretapping and the fruit of the poisonous tree The fruit of the poisonous tree doctrine basically states that any evidence obtained under illegal means is not admissible in court. Wiretapping is related to the fruit of the poisonous tree due to the fact that so many wiretapping case decisions or convictions have been overturned due to the defendants rights being violated. When their rights are violated, it means that the evidence collected was done so illegally which makes that evidence inadmissible. Outcome of my case if the originals are not located

The best evidence rule was originally created in the 18th century when a copy was usually handwritten by a clerk of the court and sometimes contained numerous mistakes. Also the best evidence rule states that the original is preferred but not necessary, especially if there is a good reason why the original cannot be used. There is not much to do when evidence comes up missing except hope that whoever collected it followed the proper chain of command in regards

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to collecting and bagging and documenting it, retracing the steps that it took. Plus there are two copies, one held by the defense and one held by our team, between the two copies I would think that at least one of them would be audible enough to hear what the judge and the jury needed to hear. We need to listen to both copies and first see if presenting the judge with an audible copy is even possible and go from there. DNA testing and its purpose DNA evidence is biological material from which DNA is or can be extracted (American Bar Association, n.d., Figure 1.1). DNA evidence is quite often used for identifying a suspect in many criminal cases. Evidence based on DNA should be used if it will help to determine a persons innocence or guilt. The steps to testing someones DNA are to first collect the DNA from the suspect, then you preserve the evidence, test it and last the test should be interpreted. All of this is done in a way that is sure to result in the most accurate and reliable information that is possible (American Bar Association, n.d.). Many years ago, you could only have someones DNA tested if you worked for the government or a research facility. Advances in scientific technology have made it possible today for anyone who wants to have their DNA tested to do so. There are many uses for DNA testing today and they range from genetic testing to determine the sex of a baby all the way down to recording genetic codes in archaeology (American Bar Association, n.d., Figure 1.1). The role of law enforcement making DNA testing available Law enforcement started using DNA analysis in 1986. There existed two cases of sexual assault and murder of two young girls where the cases were potentially linked to one another. Over at the University of Leicester in England, two police officers asked Dr. Alec Jeffreys if he thought that using DNA testing would be able to help them locate the suspect in the two cases.

PHASE 5 INDIVIDUAL PROJECT The police had a sample from each dead body and they wanted to see if it was the same person

who committed both crimes. Dr. Jeffreys took the samples that police had and tested them to see if they were the same, they were. They did not however match the DNA of the person who had confessed to one of the crimes; so he was later freed as he was not the person in either case who had committed the crimes. It ended up being a local man in the community of Leicestershire, a very small community of about 5000 males. His name was Colin Pitchfork and he might have escaped police if it were not for his friend who lied for him. The police tested the DNA of all the men in that community, but Pitchfork had a friend of his take his place and he almost got away with it; but the friend ended up caving in and telling police the truth. Pitchforks DNA matched that of the DNA found on both victims and he was found guilty of both crimes (International Association of Chiefs of Police, 2013). This was definitely an exciting time for both the forensic world as well as the world of policing, but the reality of the early days of DNA testing is that it required a big amount of DNA to test, it took a long time to get the results back, and the professionals trained in that field were few and far between. DNA testing remains to be helpful in all kinds of criminal cases to this day. It is famous for assisting to free someone who has been wrongfully accused and jailed. It is also known for identifying the person who is guilty of the crimes as DNA evidence does not lie. The first instance of using DNA in a criminal case back in 1986 accomplished both at the same; it freed one man while it also linked one man to the two separate cases. However, the Justice System finally started to realize just how helpful DNA testing could be in a criminal case and then technology started updating and progressing until finally just about anybody today can have a DNA test done (International Association of Chiefs of Police, 2013).

PHASE 5 INDIVIDUAL PROJECT The best evidence rule in comparison to DNA testing The best evidence rule simply would prefer the original over a copy unless the copy has

been authenticated. In court, before evidence can be considered admissible, the foundation must first be laid by the attorney that proves that the evidence is what it claims to be. For example, if you have a picture of a crime scene, you might could call whoever took the picture and ask them if they were actually at the crime scene with a camera, and had taken a picture. Then you would ask if the picture that you have in your possession was that same picture. If you did all this, and they say yes that it is their picture from the crime scene, the picture would be authenticated and therefore admissible in court as evidence (Farlex, Inc., 2013). DNA evidence on the other hand, does not have to be authenticated because it does not lie and it cannot be wrong. Recall that in regards to the best evidence rule, the reason for implementing that rule was because there used to be many errors in handwritten copies back from the 18th century when the court clerk would make a copy by handwriting the information. The rule was implemented to cut down on the number of errors that the court would encounter with using a copy rather than the original. When it comes to using the results of a DNA test, there is no way to make a mistake, no two people share the same DNA. DNA already is the best evidence possible because nothing can compare to using a persons own DNA sample to prove their innocence or even their guilt. In a way, DNA is already the best possible evidence that exists (Innocence Project, n.d.).

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PHASE 5 INDIVIDUAL PROJECT References American Bar Association (n.d.). Standards on DNA evidence (Table of contents). Retrieved November 5, 2013, from

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http://www.americanbar.org/publications/criminal_justice_section_archive/crimjust_stan dards_dnaevidence.html Cederbaums, J. (1969). Wiretapping and Electronic Eavesdropping: the Law and Its Implications. Criminiologica, 7(1), 32-49 Retrieved October 30, 2013, from http://ehis.ebscohost.com.proxy.cecybrary.com/ehost/detail?sid=0e40c771-e284-4c1ab531cdba6e942d7b%40sessionmgr11&vid=5&hid=16&bdata=JnNpdGU9ZWhvc3QtbGl2ZQ %3d%3d#db=i3h&AN=17773526 Demand Media, Inc. (2013). Federal rules of audio evidence. Retrieved November 4, 2013, from http://www.ehow.com/list_6882369_federal-rules-audio-evidence.html Farlex, Inc. (2013). Evidence. Retrieved October 28, 2013, from http://legaldictionary.thefreedictionary.com/The+Best-Evidence+Rule Farlex, Inc. (2013). Fruit of the poisonous tree. Retrieved October 30, 2013, from http://legaldictionary.thefreedictionary.com/Fruit+of+the+Poisonous+Tree Federal Evidence Review (2010, February 10). 2013 Federal evidence rules. Retrieved October 8, 2013, from http://federalevidence.com/blog/2010/may/fre-1002-best-evidence-rulenot-applied-number-inscribed-cocaine-defendants-safe Innocence Project (n.d.). Preservation of evidence. Retrieved November 7, 2013, from http://www.innocenceproject.org/Content/Preservation_Of_Evidence.php

PHASE 5 INDIVIDUAL PROJECT International Association of Chiefs of Police (2013). The impact of DNA on policing: Past, present, and future. Retrieved November 7, 2013, from

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http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&artic le_id=1320&issue_id=112007 Legal Information Institute (n.d.). Goldman vs. United States. Retrieved October 30, 2013, from http://www.law.cornell.edu/supremecourt/text/316/129 Maclin, Tracey (2002). Wiretapping and Eavesdropping Encyclopedia of Crime and Justice. Retrieved October 28, 2013, from http://www.encyclopedia.com/topic/Wiretapping.aspxt