FIC: The Year of Living Dangerously, Part II (Veronica/Logan, Ensemble) (Legal) (WIP) (NC-17)

[vanessagalore]

Footnote #15: More legal stuff for the picky reader about the admissibility of evidence collected by Veronica and the rest of the team at Briar Hill.

I've read a lot of articles about the legality and admissibility of evidence collected by a private citizen, such as a private detective. Again, please note, I am not a lawyer, and I did not consult an attorney, just various web sources of varying degrees of accuracy. If any attorneys are reading this and I've gotten it wrong, please let me know right away; I'll try to fix it and salvage my future plot twists.

It sounds to me that the 'exclusionary rule', based on the U.S. Constitution's Fourth Amendment that guarantees protection against unreasonable searches and seizures, which is a common plot device in American crime television and fiction, is primarily applicable to government employees. Police officers and federal agents are not allowed to gather evidence without prior authorization based on 'probable cause', in other words a judge must determine that there is reasonably sufficient evidence to presume that a target should be investigated and their property and personal belongings searched, unless a felony or misdemeanor in progress is actually witnessed by the law enforcement person. Electronic recordings without the permission of the person being taped would not be properly be admissible if conducted by a law enforcement person: "in strict cases, when an illegal action is used by police/prosecution to gain any incriminating result, all evidence whose recovery stemmed from the illegal action–this evidence is known as "fruit of the poisonous tree"–can be thrown out from a jury (or be grounds for a mistrial if too much information has been irrevocably revealed)."
[http://en.wikipedia.org/wiki/Exclusionary_rule; accessed 7/29/08]

This exclusionary principle does not apply to civil proceedings, such as a class action lawsuit like the one originally being pursued by my character, the attorney Epstein. In general, the rules of evidence are less strict in civil cases than in criminal, and the burden of proof is lower (witness for example, the criminal acquittal of O.J. Simpson for the murder of his ex-wife vs. the successful civil judgment against him, see http://en.wikipedia.org/wiki/O._J._Simpson; accessed 7/29/08).

However, a private citizen, such as a private detective, can give evidence, including unauthorized recordings, in a criminal proceeding, generally without fear that the evidence will be excluded. From the same Wikipedia article, "Evidence unlawfully obtained from the defendant by a private person is admissible. The exclusionary rule is designed to protect privacy rights, with the Fourth Amendment applying specifically to government officials." The private person is, however, subject to tort remedies, i.e., Briar Hill Academy could sue Keith for damages subsequent to the violation of its reasonable expectation for privacy. Also, in a civil case, unauthorized recordings can also be used as rebuttal evidence against witness testimony; for instance, if Klein testifies in a civil proceeding that restraints are not used as a punishment, Epstein can introduce the videotaped evidence that Veronica was held in restraints.

I'm basing my plot on Keith preferring to bring in the government to prevent any allegations of misconduct on his and Veronica's part and also hoping to ensure that any evidence is irrefutable by the defendant's claims of illegal wiretapping or surveillance. If a federal judge signs a warrant and federal agents supervise any evidence collection, Keith has some protection against a retributory lawsuit, and a federal agent will ensure that the 'chain of custody' is unbroken (i.e., the evidence is maintained securely and continually by a law enforcement official). Of course, a federal prosecution against Klein and Briar Hill Academy has more chance of successfully shutting down the school and possibly leading to better legislation regarding private schools.

Note that private investigators cannot tap phones legally and are not allowed to access an individual's criminal record, and they are not allowed to use information gained by unauthorized recordings to blackmail (which is considered a violation of racketeering statutes) or to commit corporate espionage. There was a recent case of the so-called 'Private Detective to the Stars', Anthony Pellicano, a Los Angeles private detective who was found guilty on charges such as these.
[http://www.nytimes.com/2008/05/16/business/16pellicano.html?ex=1368676800&en=17fd8bb5a784ebdb&ei=5124&partner=permalink&exprod=permalink Accessed 7/29/08.] Both Veronica and Keith, as licensed private detectives, and Keith as an ex-law enforcement official as well, would be aware of these fine points of criminal law, and Epstein as an attorney would certainly be aware of the difficulties of evidentiary rules.

Back to the last chapter, Chapter Seventy-Two.

On to the next chapter, Chapter Seventy-Three.